What to Know
- Attorney General Merrick Garland directed Justice Department agencies to hold meetings nationwide on criminal threats against school personnel.
- Mask mandates and racial issues have drawn hundreds of angry parents to school board meetings coast to coast.
- Garland’s directions say “spirited debate” is protected.
Mainly due to mask mandates, once sleepy school board discussions of budgets and facility management have become noisy events that draw hundreds of angry parents. From Washington state to Georgia, strong feelings about COVID-19 policies have driven most of the debate, but in some places, disagreements over schools’ policies on race, history and equality have been just as vehement.
In one instance, demonstrators surrounded a school board member’s car, preventing him from driving away. After one Illinois school board meeting, police arrested an Illinois man for disorderly conduct and aggravated battery.
Florida Republican Sen. Rick Scott was quick to respond.
"Joe Biden’s attorney general wants the FBI to go after parents for speaking out at school board meetings to protect kids from radical curriculum like critical race theory," Scott tweeted Oct. 5. (The discussion of race in schools has drawn charges of indoctrination, often under the umbrella term of critical race theory, a school of thought that focuses on systemic, rather than overt, discrimination.)
We’ll compare Garland’s memo to Scott’s claim that this is an effort "to go after parents for speaking out at school board meetings." And we’ll explore what the law has to say about the line between free speech and behavior that breaks the law.
Garland’s school personnel threat memo
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On Oct. 4, Garland sent a memo to the FBI, every U.S. attorney and the Justice Department’s Criminal Division.
"In recent months, there has been a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff who participate in the vital work of running our nation's public schools," Garland wrote Oct. 4. "While spirited debate about policy matters is protected under our Constitution, that protection does not extend to threats of violence or efforts to intimidate individuals based on their views."
Garland told the FBI to hold meetings across the country and bring together leaders at all levels of government to discuss "strategies for addressing threats against school administrators, board members, teachers, and staff, and (to) open dedicated lines of communication for threat reporting, assessment, and response."
The focus, Garland said, is on criminal conduct.
Justice Department spokesman Wyn Hornbuckle said nothing in Garland’s memo amounted to an "effort to silence those with particular views about COVID-related policies, school curricula, or other topics of public discussion."
"The department’s efforts are about rooting out criminal threats of violence, not about any particular ideology," Hornbuckle said.
We reached out to Scott’s office and did not hear back.
Why some find the memo troubling
We heard from four law professors who specialize in the First Amendment and freedom of speech. Of the four, Eugene Volokh at the University of California Los Angeles voiced the most concern with Garland’s orders.
"The First Amendment does not protect true threats of violence," Volokh said. "But Garland mentioned harassment and intimidation. If he had stopped with criminal threats, we would agree. But I’ve seen the terms ‘harassment’ and ‘intimidation’ used very broadly. I can see someone at a meeting worrying that if they get up too often, or they say too much, they might be charged."
Volokh cited cases where charges have been made, and thrown out, against people for harassment. In one 2020 case, the federal government charged a Mississippi man, Christopher Cook, with internet harassment (technically, cyberstalking) after he used his Facebook account to accuse state agents, judges and others of framing him for drug charges.
The U.S. District Court ruled against the government, saying nothing reached the level of a "true threat." The man never directly contacted anyone, nor did he explicitly state he intended physical harm.
To Volokh, this shows the legal risk a parent might face if they sound off against school board members. Or nearly as bad, in Volokh’s view, a parent might fear they face that risk, and so, not speak out.
Defining "true threat"
Gregory Magarian, professor of law at Washington University in St. Louis School of Law, said Scott’s tweet doesn’t track with Garland’s instructions.
"The attorney general’s statement specifically acknowledges that the First Amendment protects political debate, or what Sen. Scott refers to as ‘speaking out,’" Magarian said. "Nothing in the attorney general’s statement suggests any affirmative reason to worry about overly broad enforcement. If federal or state law enforcement does engage in overly broad speech restriction, the First Amendment overbreadth doctrine provides the remedy."
In jurisprudence, "true threat" has a specific meaning.
"Vociferous dissenting speech at a school board meeting is protected," said law professor Douglas Laycock at the University of Virginia School of Law, who voiced no opinion on Garland’s memo itself. "Disrupting the meeting and making it impossible to continue probably is not. Threatening the school board with physical violence definitely is not."
About 45 years ago, the U.S. Court of Appeals for the Second Circuit came up with a fairly specific test of what constitutes a true threat. It’s a threat that "on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution."
The lesson from case law
Magarian noted that Garland’s memo does not promise much specific action.
"It only mandates the discussion of strategies for addressing threats and opening dedicated lines of communication for threat reporting, assessment, and response," Magarian said. "Whether or how any government will ‘go after’ anyone remains entirely conjectural."
In the cases Volokh shared, the courts slapped down overzealous government prosecutors. To Volokh, that shows that the government can go too far. To others, the results show the limits the government faces.
"If the Justice Department tried to stretch intimidation to cover any hostile speech, they should lose, and almost certainly would lose," Laycock said.
Scott said that "Joe Biden’s attorney general wants the FBI to go after parents for speaking out at school board meetings to protect kids from radical curriculum like critical race theory."
Attorney General Garland specifically said that "spirited debate" is protected. His memo targeted threats that go beyond passionate speech, and said nothing about critical race theory. The line between sincere debate and words that intimidate isn’t always clear, and there is a concern that officials might apply an overly broad interpretation. In the past, courts have ruled against that sort of loose approach to defining what constitutes a threat. Nothing in Garland’s memo says that is part of the plan.
We rate this claim False.