Speech doesn’t become a “threat” just because a government official calls it that. Yet the National School Boards Association (NSBA) got the Justice Department to open anย investigationย after labeling parents’ speechย as “threats and acts of violence” when itย occurredย in controversies over “critical race theory” and “masking requirements” in the public schools. As theย Washington Examinerย notes, “A few of the most outrageous examples of these ‘threats and acts of violence,’ according to the association, include a man filming himself while calling school administrators and another man labeling a school board as ‘Marxist.'” The NSBA’s letterย lists asย an example of such threats and violence “A resident in Alabama, whoย proclaimed himself asย ‘vaccine police,’ย has called schoolย administrators while filming himself on Facebook Live.”
The NSBA letter falsely claims thatย “critical race theory is not taught in publicย schools and remains a complex law school and graduate school subject well beyond the scope of aย K-12 class.” Inย reality,ย 20 percentย of urban school teachers haveย taught or discussedย critical race theoryย with theirย K-12 students, along withย 8 percentย of teachers nationally, accordingย to a surveyย by Education Week. These percentages are even higher in high schools, whereย books byย critical race theorists are much more likely to beย assignedย to students than in elementary schools. The Loudoun County, Virginia, public schoolsย paidย a contractor to train their staff in critical race theory, giving it $3,125 to conduct “Critical Race Theory Development.”
The NSBA complained about a man filming himself talking to school administrators. But filming yourself is not threatening, and it is less intimidating than filming other people, which courts have ruled is still protected by the First Amendment. For example, courtsย have ruledย that filming the police is free speechย in cases such asย Fields v. Philadelphiaย (2017). If you can videotape the police during a tense encounter or an arrest, then you can certainly film yourself talking to school officials, even if they think their responses make them look bad to the public.ย
Speech can’t be punished just because it makes someone look bad and leads to them getting hate mail. The Wisconsin Supreme Court made that clear when itย ruledย in favor of a conservative professor whose criticism of a bossy progressive instructor led to her getting hostile emails and hate mail from angry members of the public. (See McAdams v. Marquette Universityย [2018]). So even if a school board receives angry emails after a parent films them or calls them “Marxist,” that’s still speech protected by the First Amendment.
The Justice Department’s responseย followedย NSBA’s request that the Justice Department “intervene against โฆย cyberbullying attacks,” and prosecuteย “these crimes and acts of violence under โฆย the PATRIOT Act in regards to domestic terrorism,” the “Hate Crimes Prevention Act,” and federal civil rights laws. The NSBA’s letter also lists some less benign conduct, such as unspecified alleged “physical threats” and the arrest of a man for supposedly committing battery and disorderly conduct at a school board meeting.
In response to the NSBA’s letter, Attorney General Merrick Garlandย said theย Justice Department would investigate “harassment, intimidation, and threats” aimed at school officials or employees. But the conduct alleged by the NSBA is mostly heated rhetoric or bad publicity, not true threats that the government should prosecute. The Supreme Court has ruled that speech isn’t an unprotected threatย just because it containsย harsh rhetoricย or someoneย feels threatenedย by it. For example, itย ruledย a man couldn’t be prosecuted for saying, “I have already [been drafted] and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is [President Johnson].”
Government officials often feel “harassed” or “intimidated” by angry voters threatening to vote them out of office, but that doesn’t render such speech an unprotected threat. Voters have the right to threaten to remove school board members from office, even if government officials find that “harassing” or “intimidating.” As judgesย notedย in striking down a school “harassment” code that restricted speech critical of homosexuality, “there is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” (See Saxe v. State College Area School Districtย [2001]).
The NSBA’s complaint about “cyberbullying attacks” follows coordinated parent email campaigns against the teaching of critical race theory in the public schools. When recipients receive hundreds of angry emails, such as from outraged parents, they regard them as “cyberbullying.” That it’s labeled as “cyberbullying” does not mean that speech is unprotected. People have a right to express their anger about government policies, even if they do so by the thousandsย and that leaves school board members with thousands of angry emails in their inboxes.
New York’s highest court struck down a cyberbullying law as a violation of free speech inย People v. Marquan M.ย (2014). That law restricted “sending hate mail” with “the the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person,” which is how government officials often view angry messages from constituents. And it criminalized “disseminating โฆ personal โฆ information”โeven if itโs not “false”ย or “sexual”โabout any personย if it was done “with the intent to โฆ annoy โฆ, abuse, [or] tauntโ and โwith no legitimate private, personal, or public purpose,”ย whatever that might mean. Taping school board members saying stupid things could run afoul of that provision, such as the example the NSBA gave of a man calling school officials while on Facebook Live.
But legislators continue to pass overly broad laws against “cyberbullying” and “cyberstalking.” Indeed, the federal Violence Against Women Act already contains an overly broad cyberbullying provision that the Justice Department may attempt to use against parents. One judgeย found thatย certain applications of that law were unconstitutional inย United States v. Cassidyย (2011). As a result, the judge dismissed a prosecution over harsh, repeated criticism of a religious leader on Twitter, finding that the criticism was free speech. But Congress hasย since expandedย the law’s reach even further, giving Attorney General Garland a potential weapon to go after some parents.
The NSBA’s letter also cited federal civil rights laws such as the “Conspiracy Against Rights statute” and the “Violent Interference with Federally Protected Rights statute.” That is ominous, because there is a very real danger that the Biden administration, like past Democratic administrations, will misuse the civil rights laws to censor speech. During the Clinton administration, progressive civil rights officials investigated citizens for “harassment” and “intimidation” merely because they spoke out againstย or used lawsuits to block, housing projects for classes of people protected by the Fair Housing Act (such as recovering substance abusers). These speech-chilling investigations came to an end in 2000, after the Ninth Circuit Court of Appeals court ruled such investigations violated the First Amendmentย inย White v. Leeย (2000). But in 2017, liberal judgesย wrongly allowedย condo ownersย to be suedย for “interference” with civil rights, because they published angry blog posts that created a “hostile housing environment” for a disabled neighbor who later committed suicide.
