The US Department of Justice has no business — none — even considering interfering in the back-and-forth between parents and school administrators. Pedagogy and the content of K–12 curricula are the quintessential domains of state and local governance, and they are legitimately the subject of vigorous democratic debate.
A new memorandum issued by Attorney General Merrick Garland to the FBI and federal prosecutors across the country is clearly intended to send a message to one side of the debate, those who have been protesting critical race theory and trans radicalism at school board meetings.
Garland’s memo cynically conflates parents’ opposition to progressive educational indoctrination with “threats of violence against school administrators, board members, teachers, and staff” — the “public servants” in charge of state school systems. Garland then shifts from “threats of violence” to amorphous “threats,” “harassment,” and “intimidation” that he’d have the FBI investigate.
It was interesting to see the Justice Department suddenly bestirred over threats, harassment, and intimidation of public servants on the same day the president said such acts were “part of the process” when radical progressives used them against a Democratic senator seen as blocking the administration’s proposed $3.5 trillion ghastly spending spree. Nonetheless, as Garland, a former DOJ official and federal appellate judge, is well aware, the First Amendment leaves little room for law-enforcement action against speech, particularly action by the federal government. Domestic political opposition has a long and harrowing history of being treated as a proper subject for FBI investigation, most notably the surveillance of Martin Luther King Jr., a figure so dangerous that he is now commemorated with a national holiday.
There is no criminal incitement absent unambiguous calls for the use of force, under circumstances not only where the speaker’s intent to provoke violence is clear, but also where the danger of violence is real and imminent, according to Supreme Court precedents and statutory law. Even so, it is important to note that this is insufficient for federal law enforcement. There is no crime under Congress’ incitement statute unless the use of force advocated by the speaker would be a violation of federal law.
The Justice Department and FBI do not have broad, national police authority. Threats to harm others within a state, including threats against state and municipal officials, are heinous and may constitute state crimes. Garland’s memorandum makes no mention of state law enforcement being insufficient, let alone laying out a theory under which the federal government is empowered to act. Indeed, there is no federal crime unless there is a clear, intentional, real, and imminent threat to use force that involves some cognizable federal interest — for example, threats to use bombs, threats to use the mail or interstate commerce facilities (such as the Internet) to communicate clear threats of violence, and threats to attack our armed forces, destroy federal facilities, or harm federal or foreign government officials.
Clearly, if the feds can’t even prosecute actual threats of violence at the local level, they have no business monitoring what Garland refers to as “harassment” and “intimidation.” We are expected to put up with most forms of harassment and intimidation in a free society committed to free expression, even if they are obnoxious and disturbing, as long as they do not pose an immediate threat of forcible harm. And no type of expression is given more leeway in the constitution than public-policy debate.
The Garland memo is thus a blatant intimidation tactic on the part of a politicized Justice Department in an administration frightened of and desperate to appease the radical Left. It is a heinous abuse of power that must be opposed, including by Republicans hoping to persuade the public to give them control of Congress— and the control of the Justice Department’s enforcement budget that comes with it.