Conflict of interest mars Attorney General’s investigation of parents in school controversies

Hans Bader:

Left-wing teachers unions and the National School Boards Association say parents have threatened or harassed school officials over mask mandates, or for peddling critical race theory or transgender ideology. In response, Attorney General Merrick Garland says the Justice Department will investigate such “harassment, intimidation and threats.” Usually, the Department of Justice does not investigate threats, viewing them as matters to be addressed by local law enforcement, rather than the federal government. But suddenly, that has changed, for ideological reasons.

“True threats” are unprotected by the First Amendment. But harsh rhetoric can’t be punished as a “threat.” And calling something “harassment” doesn’t automatically strip it of protection under the First Amendment. As a federal appeals court noted in striking down a school’s overly broad “harassment” code that restricted speech critical of homosexuality or feminism, “there is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” (See Saxe v. State College Area School District (2001)).

Parents have certainly aimed angry diatribes at school officials and left-wing teachers in recent weeks. But those diatribes are generally speech protected by the First Amendment, and few of them are “true threats.”

Some angry messages from parents are likely to be viewed by progressive Justice Department civil-rights lawyers as “harassment” or “intimidation,” even if they constitute speech protected by the First Amendment. In the 1990s, civil-rights officials in the Clinton administration investigated citizens for “harassment” and “intimidation” merely because those citizens spoke out against housing projects for recovering substance abusers or other classes of people protected by the Fair Housing Act. These civil-rights investigations largely ceased after a federal appeals court ruled such investigations violated the First Amendment, in White v. Lee (2000). But in 2017, a judge allowed bloggers to be sued for intimidation for angry blog posts that allegedly created a “hostile housing environment” (oddly, the bloggers raised no First Amendment defense against being sued for their speech, and the court’s ruling didn’t discuss the First Amendment at all.).