In a rally promoting the new and improved “Commitment to/on America,” or the warmed-over Eye of Newt Gingrich’s Contract with/on America, Kevin McCarthy made a seemingly bizarre promise to liberate parents from the Department of Justice’s war against parents. Although faithful MAGA attendees knew exactly what McCarthy was alluding to, many commentators on left of center broadcast news outlets were a bit befuddled. They can be forgiven for not following the many lawsuits that many from the MAGA base have launched as closely as they follow Twitter accounts. The one lawsuit that caught my attention is Saline Parents, et al, v. Merrick Garland filed in the United States District Court for the District of Columbia. The Court’s September 23, 2022, 10-page memorandum opinion granting Garland’s motion to dismiss the case under Rule 12(b)(1) for lack of jurisdiction is the backstory that helps to make sense of McCarthy’s promise to parents. The full document is docketed at Case 1:21-cv-02775-DLF Document 16 Filed 09/23/22 Page 1 of 10. I have excerpted relevant portions below:
Background [taken directly from U.S. District Judge Dabney L. Friedrich’s (a Trump appointee) opinion]
On October 4, 2021, the Office of the Attorney General issued a memorandum titled “Partnership Among Federal, State, Local, Tribal, and Territorial Law Enforcement to Address Threats Against School Administrators, Board Members, Teachers, and Staff.”… The memorandum targets “a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff who participate in the vital work of running . . . public schools.” Id. It states: “While spirited debate about policy matters is protected under our Constitution, that protection does not extend to threats of violence or efforts to intimidate individuals based on their views.”
The Attorney General’s memorandum announced two action items. First, “[i]n the coming days, the Department [of Justice] w[ould] announce a series of measures designed to address the rise in criminal conduct directed toward school personnel.” Id. Second, the Attorney General directed the FBI to “convene meetings with federal, state, local, Tribal, and territorial leaders in each federal judicial district” to discuss “strategies for addressing threats against schooladministrators, board members, teachers, and staff” and to “open dedicated lines of communication for threat reporting, assessment, and response.”
Following the Attorney General’s memorandum, on October 20, 2021 the FBI sent an internal email to agents describing its efforts to identify and track these threats. … The email stated that the FBI “share[s] an obligation to ensure all individuals [, including school staff,] are able to do their jobs without threats of violence or fear for their safety.”… “As a result, [the FBI] created a threat tag, EDUOFFICIALS, to track instances of related threats.” Id. The email asked FBI offices to “apply the threat tag to investigations and assessments of threats specifically directed against school board administrators, board members, teachers, and staff,” in order to “scope this threat on a national level and provide an opportunity for comprehensive analysis of the threat picture.” Id.
The Plaintiffs: On October 19, 2021, plaintiffs filed this suit against Merrick Garland in his official capacity as Attorney General
The plaintiffs are Saline Parents, an “unincorporated association of parents,” and six parents who reside in either Saline, Michigan or Loudoun County, Virginia. Both the Saline Parents organization and the individual plaintiffs oppose “‘progressive’ policies and curricula” in their respective school districts, Saline Area Schools and Loudoun County Public Schools. …
The plaintiffs explicitly state that their activities did not include “widespread threat of criminal violence,” and that their meetings with school officials “involve[d] [only] private citizens expressing their opposition to harmful policies being considered by government officials . . . as is their right to do under the First Amendment.”
The plaintiffs allege that the Attorney General adopted an unlawful policy (AG Policy) “to use federal law enforcement resources to silence parents and other private citizens who publicly object to and oppose the . . . policies of the ‘progressive’ Left that are being implemented . . . in public school districts” such as Saline and Loudoun County. Specifically, they allege that the AG Policy labels them as “domestic terrorist[s]” and “criminalize[s]” their speech, thereby chilling their “opposition and outrage to ‘progressive’ school board curricula and policies.”
The plaintiffs seek to enjoin the AG Policy and any federal actions taken pursuant to it. Their complaint pleads causes of action based on the First Amendment; equal protection under the Fifth Amendment; protection of parental rights under the Fifth Amendment; and the Religious Freedom Restoration Act. The defendant subsequently moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) on multiple grounds, including for lack of standing.
Analysis and Findings
A. Threat of Enforcement
The plaintiffs’ first alleged injury amounts to a pre-enforcement challenge because it derives from the threatened enforcement of a law. First Am. Compl. ¶¶ 83, 99. In such cases, plaintiffs need not show “[a]n actual arrest, prosecution, or other enforcement action.” Woodhull Freedom Found. v. United States, 948 F.3d 363, 370 (D.C. Cir. 2020). Instead, they must plead facts establishing that “the threatened enforcement of a law is sufficiently imminent.” Id. (internal quotation marks omitted). To do so, the plaintiffs must satisfy three requirements. Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014). First, the plaintiffs must allege “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Id. at 161 (internal quotation marks omitted). Second, their “intended future conduct” must be “arguably proscribed by the [law] they wish to challenge.” Id. at 162 (alterations and internal quotation marks omitted). Third, “the threat of future enforcement” must be “substantial.” Id. at 164.
At the first prong, it is undisputed that the plaintiffs intend to engage in conduct that is arguably affected with a constitutional interest—namely, the First Amendment. The First Amendment protects free speech, including advocacy against school officials, but does not extend to “true threats” and “[t]hreats of violence.” Virginia v. Black, 538 U.S. 343, 359 (2003). The plaintiffs allege, see First Am. Compl. ¶ 107, and the defendant agrees, see Def.’s Mem. at 19, that their activities are limited to “constitutionally protected activities” covered by the First Amendment.
But the plaintiffs fail at the second prong for two independent reasons. The alleged AG Policy does not “arguably proscribe[]” plaintiffs’ conduct, Susan B. Anthony List, 573 U.S. at 162, because it is not “regulatory, proscriptive, or compulsory in nature,” Laird v. Tatum, 408 U.S. 1, 11 (1972). And even if it were, the policy does not apply to the plaintiffs’ constitutionally protected conduct. The alleged AG Policy is not regulatory, proscriptive, or compulsory in nature because it does not impose any regulations, requirements, or enforcement actions on individuals. None of the documents that the plaintiffs allege establish the policy create an imminent threat of future legal actions against anyone, much less the plaintiffs. The Attorney General’s October 4 memorandum simply announced a plan to “announce a series of measures” in the future and directed the FBI to convene meetings with leaders in each federal judicial district. AG Memo at
2. At most, it charged the FBI with “open[ing] dedicated lines of communication for threat reporting, assessment, and response” at these meetings, without requiring any particular regulatory or enforcement action. Id. Similarly, the FBI’s October 20 internal email created a new threat tag to track threats against school officials and listed a few guidelines along which to evaluate those threats. FBI Email at 2. Nowhere in the email did the FBI require that any particular action be taken in response to a threat labeled with the new tag. See id. Finally, the plaintiffs’ photo of one marked Homeland Security vehicle outside a school board meeting—in a city that is neither Saline nor in Loudoun County—does not plausibly establish an inference that the Attorney General has taken or intends to take any kind of enforcement action. First Am. Compl. ¶ 87. The plaintiffs’ future conduct therefore cannot be considered “arguably proscribed” by the alleged AG Policy.
The Attorney General’s memorandum explicitly states that it does not target what “is protected under our Constitution,” which includes “spirited debate about policy matters.” AG Memo at 2. It only covers “criminal conduct” that is not constitutionally protected, such as “threats of violence or efforts to intimidate individuals based on their views.” Id.; see Virginia, 538 U.S. at 359–60 (stating that the First Amendment protects neither “true threats[,] . . statements where the speaker means to communicate a serious expression of an intent to commitan act of unlawful violence to a particular individual or group of individuals” nor “[i]ntimidation in the constitutionally proscribable sense of the word . . . , where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death”).
Similarly, the FBI’s internal email applies a new threat tag only to “threats specifically directed against school board administrators, board members, teachers, and staff.” … Assuming, as the Court must, that the complaint’s factual allegations are true, Cause of Action Inst. v. Internal Revenue Serv., 390 F. Supp. 3d 84, 91 (D.D.C. 2019), none of the plaintiffs’ conduct, which is limited to constitutionally protected speech, falls within the scope of the alleged policy.
Despite the alleged policy’s explicit terms, the plaintiffs blithely assert that they are nonetheless the “subjects” of the alleged policy, Pls.’ Opp’n at 39, based solely on its timing and the fact that members of school boards have complained that plaintiffs were “attacking the board,” see First Am. Compl. ¶¶ 89, 93–94. Without more, this allegation is unpersuasive. The plaintiffs also contend that they “are currently targets of investigation and data collection,” Pls.’ Opp’n at 38, but the complaint contains no such factual allegations. See generally First Am. Compl. Based on the complaint, the Court cannot conclude that the alleged AG Policy “arguably proscribe[s]” the plaintiffs’ conduct. Woodhull, 948 F.3d at 371. Thus, “there is something fundamental to a pre-enforcement challenge that is missing here.” Matthew A. Goldstein, PLLCv. U.S. Dep’t of State, 851 F.3d 1, 4 (D.C. Cir. 2017). Because the plaintiffs have not identified any “desired conduct . . . that might trigger an enforcement action,” id., they lack standing to challenge the alleged policy.
B. Reputational Injury
The plaintiffs further allege that they have suffered reputational harm caused by “the AG’s designation of [the] [p]laintiffs as criminal ‘threats’ and ‘domestic terrorists.’” Pls.’ Opp’n at 38. Reputational injury can be a cognizable type of injury in fact. Meese v. Keene, 481 U.S. 465, 473 (1987) (statute’s labeling of a plaintiff’s activities as “political propaganda” inflicted injury because the plaintiff’s “personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession could be impaired”). Here, however, the plaintiffs have not sufficiently alleged that they will imminently suffer any reputational injury as a result of the AG Policy. As noted, the Attorney General’s memorandum does not apply to the plaintiffs’ activities, and even if it did, the policy does not label anyone a domestic terrorist, as the plaintiffs suggest, First Am. Compl. ¶¶ 38, 65. Nor does it create a reputational association.
The only concrete evidence that the plaintiffs provide of reputational injury is the National School Board Association’s use of the words “domestic terrorism” in a September 29, 2021 letter to the White House. See First Am. Compl. ¶¶ 93–94; Def.’s Mem. at 13–14. This letter raised concerns about “acts of malice, violence, and threats against public school officials” and charactered these “heinous actions” as “equivalent to a form of domestic terrorism.” Def.’s Mem. at 13–14. But for the reasons stated above, the letter cannot fairly be interpreted as directed at the plaintiffs’ activities. Moreover, contrary to the plaintiffs’ contention, the letter cannot plausibly be considered part of the alleged policy, much less “the sole basis for the AG Policy,” First Am. Compl. ¶ 76. The letter was sent by a private entity unaffiliated with the Attorney General, and the Attorney General’s October 4 memorandum does not even mention the letter. See AG Memo
10at 2. “[T]he court need not accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations.” Gregorio v. Hoover, 238 F. Supp. 3d 37, 44 (D.D.C. 2017) (internal quotation marks omitted). Because the plaintiffs have not sufficiently alleged that they will suffer a reputational or other cognizable injury caused by the AG Policy, they lack standing to challenge the policy.
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted. A separate order consistent with this decision accompanies this memorandum opinion.
Dabney L. Friedrich
United States District Judge
After reading through Judge Friedrich’s opinion alongside that of the 11th Circuit in the case of Donald J. Trump v. United States of America, I was left wondering if there is a template for these lawsuits circulating among MAGA republicans. Trump and Saline Parents raise similar objections to actions taken by the Attorney General: Threat of Enforcement and Reputational Injury. If this is the case, then the attorneys representing both sets of plaintiffs are overcharging for their services…not that I’m bothered by unscrupulous attorneys ripping off unscrupulous human beings. At any rate Kevin McCarthy’s cowardice was on full display at that Contract, I mean Commitment, on America. Too afraid to publicly rebuke a Trump nominated and confirmed District Court Judge, McCarthy resorted to speaking in tongues before Trump’s MAGA cult base.