Garland Memo on Parent Protests May Chill Free Speech
by Alan M. Dershowitz • October 12, 2021 at 5:00 am
The memo acknowledges that "spirited debate about policy matters is protected under our Constitution." .... 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.
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.
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."
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.... 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 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.
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.
