No matter how hard the attorney general’s Senate allies try to pretend otherwise, his improper assault on parents’ free-speech rights is undeniable.
Attorney General Merrick Garland is testifying today at an oversight hearing convened by the Senate Judiciary Committee. Chairman Dick Durbin (D., Ill.) did not take long to project the Democrats’ strategy for fending off rebukes of Garland over his memo threatening to investigate parents who protest progressive indoctrination in the schools.
In his opening statement, Senator Durbin first insisted that Garland has stressed that the First Amendment protects dissent, but then maintained that violence in school-board meetings is a serious problem throughout the country, and that threats of violence were the true motivation for Garland’s memo.
As I’ve explained, there is no federal jurisdiction over even actual violence that is local in nature, much less over threats of such violence — and even if that weren’t the case, the First Amendment would still drastically limit what types of speech are subject to criminal prosecution.
Senate Democrats, echoed by Garland himself, have adopted three approaches to deal with this jurisdictional problem.
First, they calculate that most Americans are unaware that local violence and threats of violence are not federal crimes and will approve of any law-enforcement monitoring meant to prevent violence, even in cases when such monitoring would suppress constitutionally protected dissent. Democrats insist that violence is rampant at school-board meetings — even though the examples they offer are overwhelmingly threats of violence, rather than actual violence. Their assumption is that under these claimed circumstances, people will figure it is only natural for the DOJ to threaten FBI monitoring of interactions between parents and school administrators.
Second, echoing Garland’s memo, Democrats claim that the attorney general was merely encouraging federal law-enforcement agencies to support state and local law-enforcement efforts to address threats of violence against school boards. What they conveniently leave unmentioned is that Garland framed the issue in this manner because the state and local authorities have jurisdiction over such threats, and the feds do not.
To be clear, federal criminal jurisdiction is determined by the Constitution and congressionally enacted statutes. Claiming to “partner” with state and local officials does not give the feds jurisdiction over state and local matters. The federal government has many task-force arrangements with state and municipal authorities — genuine partnerships in, e.g., the fights against terrorism and drug trafficking. But those arrangements are permissible only because there is, in the first place, concurrent federal and state jurisdiction over terrorism and drug crimes. There is no federal jurisdiction over interactions between parents and their local school boards.
Third, Garland and Senate Democrats are attempting to conflate school boards with other potential targets of violence, such as the Capitol, other federal facilities, and federal officials. This is thin camouflage. When federal prosecutors and investigators consider taking a case, the first question they must ask is whether there is federal jurisdiction. If there is no potential federal crime, then there is no federal jurisdiction and no cause for federal law-enforcement action, period.
It is not appropriate for federal law-enforcement agencies to proceed against non-federal investigative subjects just because, in similar contexts, there could be proper federal subjects. Unless there is a legitimate federal jurisdictional hook — e.g., threats communicated via the U.S. mail or involving interstate commerce — there is no basis for a federal investigation.
In 1963, when the Supreme Court was developing the legal doctrine that guards against the “chilling” of First Amendment–protected speech, the justices explained that “the threat of sanctions may deter . . . almost as potently as the actual application of sanctions.” The Court’s jurisprudence, moreover, establishes an “overbreadth doctrine,” which invalidates sweeping regulations that target criminal speech if they have the natural effect of suppressing protected speech.
Free speech is a constitutional right. Garland has more responsibility to safeguard it than he does to police what Democrats claim are widespread threats of local violence, because even if those claims were not dubious, they would not implicate federal law. Garland’s memo represents an abdication of that responsibility, patently chilling First Amendment–protected dissent by raising the specter of federal law enforcement in an area where there is no federal jurisdiction. Garland and Senate Democrats can try to obfuscate that fact, but it remains a fact.
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