In the past, the ACLU vigorously protected the rights of... thugs with whom they... disagreed.... These concerns seem to have been subordinated to partisan and ideological considerations.... [M]any parents are understandably worried that the Justice Department may be engaged in selective investigations and ultimately selective prosecutions. Pictured: Attorney General Merrick Garland. (Photo by Samuel Corum/Pool/Getty Images)
Attorney General Merrick Garland recently released a memorandum addressing "a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff...." The actual words of the memorandum – the lyrics – seem appropriate on their face, but the music is discordant with the First Amendment.
The memo acknowledges that "spirited debate about policy matters is protected under our Constitution." It then goes on to direct the FBI to come up with strategies for addressing illegal threats against these public officials. Nothing wrong with that. But no similar memo was directed against Black Lives Matter and other far-left groups that not only threaten violence against public officials and private citizens, but also engage in a considerable amount of criminal conduct, such as arson and destruction of property. Some protesters have intimidated and threatened people who disagree with them. Although no specific mention was made of parents' protests against teaching critical race theory and comparable ideological content to school children, or against mandatory masking requirements, it is clear from the context and timing that these are the protests that generated this memo.
As a result of this timing, context and apparent lack of concern for the Black Lives Matter type of protests, many parents are understandably worried that the Justice Department may be engaged in selective investigations and ultimately selective prosecutions. Again, the absence of certain notes makes the concerns expressed by protesting parents understandable.
When dealing with protests, the Justice Department must be clear that the First Amendment fully protects all forms of protest, including raucous and unpleasant ones, and that that generalized threats and nonviolent intimidation do not overcome this constitutional protection. Protesters must specifically threaten immediate violence against specific individuals. The Supreme Court has upheld vague, generalized advocacy of violence as protected by the First Amendment.
The Garland memo fails to draw the appropriate First Amendment line and suggests that the FBI and other law enforcement agencies can appropriately investigate and "discourage" generalized threats and "efforts to intimidate" public officials. While the First Amendment errs on the side of protecting such wrongheaded protests, the Garland memo errs on the side of investigating and possibly prosecuting them.
The most distressing aspect of this memorandum is its apparent focus on right-wing activities, as distinguished from equally dangerous left-wing activities. The rule of law must always pass the "shoe on the other foot test." It must make it clear that the Justice Department does not distinguish between what it regards as "good" protest activities and "bad" ones based on political preferences.
Back in the day, the American Civil liberties Union could be counted on to express concern that memos of this kind might "discourage" or deter more than illegal activities, but may also chill constitutionally protected ones, since no one wants to be investigated by the FBI. In the past, the ACLU vigorously protected the rights of Klansmen, Nazis and other right-wing thugs with whom they fundamentally disagreed. They worried about the chilling effect that government threats could have on marginally legitimate protests, such as those protected by the Brandenburg v. Ohio case in 1969, in which neo-Nazis threatened generalized violence. These concerns seem to have been subordinated to partisan and ideological considerations.
I like Merrick Garland. I supported his nomination to the Supreme Court. And I think he was a good choice for Attorney General. It is in this spirit that I call on him to clarify his memorandum in two respects: (1) by making it clear that law enforcement will not investigate or prosecute raucous protests that fall on the protected side of the Constitutional line; and (2) that whatever standards law enforcement does apply must be applied equally to protests by left-wing agitators.
I stand ready to defend the rights of constitutionally protected protests, regardless of the ideology behind them. I personally approve of masking mandates, with appropriate exceptions, because they can help prevent the spread of a highly contagious virus (see my new book: The Case for Vaccine Mandates). I disapprove of teaching captive student from the "critical legal studies" playbook, precisely because it is not critical or objective. It tends to be propaganda rather than education. But I will defend protests against both views with equal vigor, because the First Amendment does not distinguish between protected and unprotected protests based on content, and neither should the Justice Department.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and served on the legal team representing President Donald Trump for the first Senate impeachment trial. He is the author of numerous books, including his latest, The Case for Color-Blind Equality in an Age of Identity Politics. His podcast, "The Dershow," is available on Spotify and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.