Let’s Go, Brandenburg! Parents Have Constitutional Right To (Loudly) Criticize School Boards

Let’s Go, Brandenburg! Parents Have Constitutional Right To (Loudly) Criticize School Boards

In a Sept. 29 letter to President Biden, the president and interim CEO of the National School Boards Association wrote that “America’s public schools and [their] education leaders are under an immediate threat”  by parents concerned about their children’s education.

According to the letter, criticisms of school masking requirements and the “inclusion of critical race theory within classroom instruction and curricula” transformed unhappy parents who were exercising their First Amendment rights at public school board meetings into “domestic terrorists.”

The organization sought federal law enforcement assistance in quashing these critics.  And a few days later, Attorney General Merrick Garland complied, transmitting a memo to the FBI directing it to collaborate with local law enforcement to target outspoken parents.

Without citing any data or his sources, Garland asserted in his memo that there has been “a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff,” and that he was “committed to using [the DOJ’s] authority and resources” to silence the offenders.

A tsunami of outrage ensued.  Several state affiliates of the NSBA resigned from the organization in protest, and Garland himself was hauled in front of the House and Senate Judiciary Committees to testify about his memo.

But none of this should have come as a surprise.

Enormous damage was done to the First Amendment last year when then-President Donald Trump was impeached for the high crime and misdemeanor of “incitement of insurrection” for questioning the integrity of the November 2020 election at a political rally on Jan. 6.

But the Supreme Court unanimously held in Brandenburg v. Ohio that in order to constitute incitement – a species of “fighting words” unprotected by the First Amendment – speech must meet a two-prong test.  First, the speech must be “directed to inciting or producing imminent lawless action.” Second, it must be “likely to produce such action.”

President Trump’s speech satisfied neither of these elements.  To be sure, Trump did urge his supporters to “go to the Capitol,” but he never once encouraged them to break in to the building or to violate the law in any way.  Quite the opposite, he urged them to peacefully march.

Having succeeded in impeaching a sitting president under the fighting words exception to the First Amendment, radical Democrats are now using the same tactic against parents who protest critical race theory in K-12 educational curricula, compulsory masking of schoolchildren and the elimination of gender distinctions in schools – all of which are sacred cows to the left – by branding such objections as the fighting words of domestic terrorists.

And it was entirely predictable that the Biden Administration, which regularly genuflects to the Bolsheviks and Jacobins in his party, would play along.

Of course, none of the incidents referenced in the NSBA’s letter comes close to satisfying the Brandenburg test.

Perhaps realizing as much, Merrick Garland claimed in his testimony before the House and Senate Judiciary Committees that his memo to the FBI was intended to summon federal resources only against those who directly threaten violence to school officials.

“True threats” of physical violence are never constitutionally protected, but angry denunciations of district officials at public school board meetings – even those that disrupt the proceedings – don’t fall into that category.

In Virginia v. Black, the Supreme Court held that a “true threats” exists “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual” with the intent of “placing the victim in fear of bodily harm or death.”

But none of the examples in the NSBA’s letter satisfy this definition.  And Garland, at his congressional hearings, couldn’t provide any real life illustrations of such threats, either.

Moreover, the Supreme Court held in Watts v. United States that hyperbolic statements made as a form crude political opposition at a public demonstration are not true threats.  Heated remarks by outraged parents at a school board meetings – especially those, like Scott Smith’s, that criticized the Loudoun County School District’s “gender fluid” policies after Smith’s daughter was raped on school grounds by a boy in a skirt who was using the girls’ lavatory –  land squarely within this rubric.

Nor, as the NSBA urges in its letter, are audience comments at school board meetings unprotected by the First Amendment simply because they raise the temperature in the room.

Indeed, in Terminiello v. Chicago, the Supreme Court declared that one of the purposes of free speech is to invite dispute even where it stirs people to anger, and that the right to speak freely and to promote a diversity of ideas is “one of the chief distinctions that sets us apart from totalitarian regimes.”

Just look at Putin’s imprisonment of pro-democracy activist Alexei Navalny and Belarusian president Alexander Lukashenko’s jailing and torture of blogger and journalist Roman Protasevich.  Navalny was added to the Kremlin’s list of organizations involved in “terrorism and extremism.”  Protasevich was put on a list of “individuals involved in terrorist activity” for vocally criticizing Lukashenko’s autocratic regime.

It seems that the NSBA – in collaboration with the White House – borrowed a page from these autocrats’ playbook when it labeled unhappy parents domestic terrorists for exercising their First Amendment rights.

And although the NSBA has since stated that “there was no justification for some of the language” included in its letter, the organization has not retracted it.

BREAKING: NSBA apologizes for letter that served as basis for @TheJusticeDept AG #Garland’s directive for FBI to target parents as “domestic terrorists,” including #LoudounScandal outrageously labeling dad of rape victim as poster-boy of domestic terrorism. Will the AG reverse? pic.twitter.com/VkFJxKIfpK

— Chip Roy (@chiproytx) October 23, 2021

Garland, too, has doubled down, refusing to rescind his memo to the FBI.

No doubt Garland was following an order from on high; President Biden’s fingerprints are on this.  According to an email from the NSBA’s interim CEO, the organization worked with White House staff in drafting its letter.  And, soon after the NSBA sent it, Biden’s Secretary of Education, Miguel Cardona, rewarded the NSBA’s president by appointing her to the National Assessment Governing Board.

The Biden Administration’s willingness to sic federal law enforcement on those who openly question liberal pieties is deeply concerning but unsurprising. Trump’s impeachment last year foreshadowed this assault on the freedom of speech.

The Supreme Court’s jurisprudence on fighting words and true threats makes clear that parents have an indisputable First Amendment right to forcefully condemn school policies they dislike – and to raise their voices while doing so.  The president, himself a lawyer, would be well served to read those cases.

Until then, it’s time for all of us to shout, “Let’s Go, Brandenburg!”

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