On Monday, Attorney General Merrick Garland issued a memorandum in which he wailed about the “disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff.” Clearing his throat with an empty nod to the inconvenient fact that the Constitution protects “spirited debate,” Garland incorrectly — indeed, outrageously for someone of his experience as a Justice Department official and federal appellate judge — claimed that free-speech principles yield not only to “threats of violence” but also to “efforts to intimidate individuals based on their views” (at least, evidently, individuals not named Sinema or Manchin).
Garland knows this is dangerous nonsense. I personally know that he knows it. He was a high-ranking official in the Clinton Justice Department, which gave me a very hard time — though it ultimately relented — when I proposed charging a notorious terrorist with soliciting acts of violence and seditious conspiracy.
We had elaborate evidence, much of it in the form of recorded statements, showing that Sheikh Omar Abdel Rahman believed himself to be in a forcible war against the United States, that his followers had carried out and plotted terrorist attacks, and that he had personally called for both bombings of American military installations and the murder of Egypt’s then-president.
Yet, with the Clinton administration under pressure from left-wing and Islamist groups aligned with the Democratic Party, I was darkly cautioned about the inviolable carapace of free expression and the imperative to avoid “chilling” speech by conflating criminal incitement with constitutionally protected rhetoric that expressed hatred for America — even rhetoric that bitterly attacked American officials and insisted that our governing system should be supplanted.
Garland well knows, as he and Clinton officials stressed to me nearly 30 years ago, that in the incitement context, the First Amendment protects speech unless it unambiguously calls for the use of force that the speaker clearly intends, under circumstances in which the likelihood of violence is real and imminent. Even actual “threats of violence” are not actionable unless they meet this high threshold.
2017: West High Reading Interventionist Teacher’s Remarks to the School Board on Madison’s Disastrous Reading Results
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