by Hans Bader
Speech doesn’t become a “threat” just because a government official calls it that. Yet the National School Boards Association got the Justice Department to open an investigation
after labeling parents’ speech as “threats and acts of violence” when it occurred
in controversies over “critical race theory” and “masking requirements” in the public schools.
As the Washington Examiner 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 letter lists as
an example of such threats and violence, “A resident in Alabama, who proclaimed himself a ‘vaccine police,’ has called school administrators while filming himself on Facebook Live.”
The NSBA letter contains blatant falsehoods. For example, it claims that “critical race theory is not taught in public schools and remains a complex law school and graduate school subject well beyond the scope of a K-12 class.” In reality
, 20% of urban school teachers have taught or discussed
critical race theory with their
K-12 students, along with 8%
of teachers nationally, according to a survey
by Education Week
. These percentages are even higher in high schools, where books
by critical race theorists are much more likely to be assigned
to students than in elementary schools. Loudoun County public schools paid
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 oneself 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, courts have ruled
that filming the police is free speech, in cases such as Fields v. Philadelphia
(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.
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 it ruled
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 University
(2018)). So even if a school board receives angry emails after a parent calls films them or them “Marxist,” that’s still speech protected by the First Amendment.
The Justice Department’s response followed
NSBA’s request that the Justice Department “intervene against … cyberbullying attacks,” and prosecute “these crimes and acts of violence under … 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 Garland said the
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.