The Volokh Conspiracy
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D.C. Circuit Rejects First Amendment Lawsuit over AG's Memorandum About Threats to Schools
From Saline Parents v. Garland, decided today by the D.C. Circuit, in an opinion by Judge Harry Edwards, joined by Judges Neomi Rao and Florence Pan:
On October 4, 2021, the Attorney General … issued a one-page memorandum … to various units in the Department of Justice …, expressing concern over a spike in reported incidents involving harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff. The Memorandum indicated that "[w]hile 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 Memorandum instructed DOJ staff to investigate the problem and discuss strategies for addressing the issue. The Federal Bureau of Investigation … subsequently sent an email … advising its agents that it had created an internal mechanism to track investigations and threat assessments relating to the issues raised in the Memorandum.
Appellants … filed suit in the District Court against the Attorney General, claiming that the foregoing actions by the Government are unlawful because they are intended to silence Appellants and others who oppose "progressive" curricula and policies in public schools. Appellants say that they strongly and publicly voice opposition to "the divisive, harmful, immoral, destructive, and racist agenda of the 'progressive' Left." And they contend that, because their protest activities include only constitutionally protected conduct and never threats of criminal violence, they have been impermissibly targeted by what they term the "AG Policy." Appellants allege the AG Policy directs the Government "to use federal law enforcement resources to silence parents and other private citizens" who object to the "progressive" agenda. Appellants seek a declaration that the purported AG Policy is unlawful, along with an injunction barring both the alleged policy and any actions taken to enforce it.
The Government has acknowledged, both before the District Court and this court, that the professed activities cited by Appellants in their Complaint fall outside the scope of the Memorandum and are fully protected by the Constitution. The Government has also consistently maintained that Appellants are not targets of any purported AG Policy….
The court held that Appellants lacked standing to sue, because they couldn't show an "injury-in-fact" that would give them a "personal stake in the outcome of the controversy":
As to Appellants' alleged threat-of-enforcement injury, the Government's reliance on Laird v. Tatum (1972), is on the mark. In Laird, the Supreme Court made it clear that a cognizable chilling injury cannot "arise merely from the individual's knowledge that a governmental agency was engaged in certain [investigative and data-gathering] activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some … action detrimental to that individual." Rather, the Government's exercise of power must be "regulatory, proscriptive, or compulsory." Accordingly, the Court in Laird declined to entertain a suit alleging that an Army program to gather intelligence on peaceful, civilian political activity chilled plaintiffs' lawful exercise of their First Amendment rights.
As in Laird, Appellants here claim only that their lawful activities are being chilled by the mere existence of governmental investigation, and at most indicate a fear that the Government, armed with the fruits of their data gathering, may take action against them in the future. This is insufficient to show injury in support of standing….
Appellants' allegations simply do not plausibly support the belief that they are targets of the DOJ. For example, they allege that school board members have complained about parents "attacking the board," but they do not claim that the DOJ took or threatened to take legal action against Appellants in response. Appellants also offer a photo of a marked Homeland Security vehicle parked outside a school board meeting, held in a city that is neither Saline nor in Loudoun County. Appellants do not allege they attended this meeting, nor that any enforcement proceeding was threatened against those who did.
Finally, Appellants assert that the Attorney General is personally and ideologically vested in broadly silencing all opposition to "progressive" curricula. Appellants even go so far as to declare that the Attorney General issued the Memorandum for personal gain, but they offer nothing to support this accusation. In sum, Appellants have not come close to demonstrating that the Government is focused on them or their peaceful activities.
Appellants' theory of reputational injury suffers similar deficiencies. Appellants allege that the contested Government actions have impugned their public reputations by designating them as "criminal threats" and "domestic terrorists." However, even on a generous reading of the factual allegations in the Complaint, there is nothing to indicate that the DOJ has designated Appellants as "criminal threats" or "domestic terrorists," as they claim.
The contents of the Memorandum and the FBI Email do not pertain to Appellants' professed activities. Appellants assert, and the Government does not dispute, that all their alleged activities are constitutionally protected. As such, Appellants fail to offer any specific action that would deem them a "criminal threat."
And there is nothing in the contested DOJ documents that even refer to a "domestic terrorism" threat. Rather, this term comes from a letter sent to the White House by a private organization, the National School Boards Association. Appellants claim the letter was drafted in collusion with the Biden administration, and that it served as the sole basis for the Memorandum. Nothing supports these conclusory statements of collusion. A letter from a private entity unaffiliated with the Government, which contains the only reference in the record to "domestic terrorism," cannot plausibly be attributed to the Attorney General. In fact, neither the Memorandum nor the FBI Email even alludes to the letter. Ultimately, Appellants have not offered anything to show that the Government labeled them in any way, let alone impugned their reputations….
The court also held that the claim was "premature and therefore unripe for judicial review," because "it depends on 'contingent future events that may not occur as anticipated, or indeed may not occur at all'":
There can be little doubt here that the pre-enforcement issues raised in this case are not fit for adjudication…. Neither the Memorandum nor the FBI Email threatens imminent enforcement action generally, much less against Appellants specifically. The contested DOJ documents do not establish any regulatory actions or even purport to offer viable policy statements. The Memorandum simply announces the Attorney General's concerns about "a disturbing spike in harassment, intimidation, and threats of violence" against school personnel. It proposes nothing more than some measures to "facilitate the discussion of strategies for addressing threats," and to "open dedicated lines of communication for threat reporting, assessment, and response."
Likewise, the FBI Email creates a "threat tag" only for the purpose of "scop[ing] this threat" and "provid[ing] an opportunity for comprehensive analysis." Apart from announcing plans to gather information for discussions, the Government has not yet directed its agents to take any concrete action. These initial plans to investigate a matter of potential concern and to strategize internally are routine functions of the Government.
Nevertheless, Appellants invite this court to give credence to their surmise that the Government will not only decide to take enforcement action at some point, but that it will take action against Appellants in particular. We decline the invitation because this would be anathema to the judicial function. A justiciable controversy may not ask a court to "advis[e] what the law would be upon a hypothetical state of facts," but rather must "admit[ ] of specific relief through a decree of a conclusive character." … Clearly, in the present case, it is much "too speculative whether the problem [Appellants] present[ ] will ever need solving." …
And the court concluded:
Appellants have not lost any First Amendment rights. The Memorandum and the FBI Email impose no obligations outside of the DOJ. Neither document proscribes any activity. Appellant "is not required to engage in, or to refrain from, any conduct" as a result of the challenged DOJ documents. Although Appellants complain of a chilling effect on their speech, the Government has not in any way restricted or regulated Appellants' activities….
Mark B. Stern and John S. Koppel represent the government.
