Why is Kevin McCarthy Promising to Remove Parents from the Terrorist Watch List? – Daily Kos

In a rally promoting the new and improved Commitment to/on America, or the warmed-over Eye of Newt Gingrichs Contract with/on America, Kevin McCarthy made a seemingly bizarre promise to liberate parents from the Department of Justices 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 Courts September 23, 2022, 10-page memorandum opinion granting Garlands motion to dismiss the case under Rule 12(b)(1) for lack of jurisdiction is the backstory that helps to make sense of McCarthys 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. Friedrichs (a Trump appointee) opinion]

On October 4, 2021, the Office of the Attorney General issued a memorandum titledPartnership Among Federal, State, Local, Tribal, and Territorial Law Enforcement to AddressThreats 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 Generals memorandum announced two action items. First, [i]n the comingdays, the Department [of Justice] w[ould] announce a series of measures designed to address therise in criminal conduct directed toward school personnel. Id. Second, the Attorney Generaldirected the FBI to convene meetings with federal, state, local, Tribal, and territorial leaders ineach 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 Generals 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 criminalviolence, and that their meetings with school officials involve[d] [only] private citizensexpressing their opposition to harmful policies being considered by government officials . . . as istheir 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 itderives 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 issufficiently 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 isarguably affected with a constitutional interestnamely, the First Amendment. The FirstAmendment 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 FirstAmendment.

But the plaintiffs fail at the second prong for two independent reasons. The alleged AGPolicy 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 constitutionallyprotected 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 Generals October 4memorandum simply announced a plan to announce a series of measures in the future anddirected 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 threatreporting, assessment, and response at these meetings, without requiring any particular regulatory or enforcement action. Id. Similarly, the FBIs 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 meetingin a city that is neither Saline nor in Loudoun Countydoes 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 Generals 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.; seeVirginia, 538 U.S. at 35960 (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]ntimidationin the constitutionally proscribable sense of the word . . . , where a speaker directs a threat to aperson or group of persons with the intent of placing the victim in fear of bodily harm or death).

Similarly, the FBIs internal email applies a new threat tag only to threats specifically directedagainst school board administrators, board members, teachers, and staff. Assuming, as the Court must, that the complaints 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 policys explicit terms, the plaintiffs blithely assert that they arenonetheless the subjects of the alleged policy, Pls. Oppn at 39, based solely on its timing andthe fact that members of school boards have complained that plaintiffs were attacking the board, see First Am. Compl. 89, 9394. Without more, this allegation is unpersuasive. The plaintiffs also contend that they are currently targets of investigation and data collection, Pls. Oppn 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 arguablyproscribe[s] the plaintiffs conduct. Woodhull, 948 F.3d at 371. Thus, there is somethingfundamental to a pre-enforcement challenge that is missing here. Matthew A. Goldstein, PLLCv. U.S. Dept 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 AGsdesignation of [the] [p]laintiffs as criminal threats and domestic terrorists. Pls. Oppn at 38.Reputational injury can be a cognizable type of injury in fact. Meese v. Keene, 481 U.S. 465, 473 (1987) (statutes labeling of a plaintiffs activities as political propaganda inflicted injurybecause the plaintiffs 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 Generals 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 NationalSchool Board Associations use of the words domestic terrorism in a September 29, 2021 letterto the White House. See First Am. Compl. 9394; Def.s Mem. at 1314. This letter raisedconcerns about acts of malice, violence, and threats against public school officials andcharactered these heinous actions as equivalent to a form of domestic terrorism. Def.s Mem.at 1314. But for the reasons stated above, the letter cannot fairly be interpreted as directed at theplaintiffs activities. Moreover, contrary to the plaintiffs contention, the letter cannot plausiblybe 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, andthe Attorney Generals 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 consistentwith this decision accompanies this memorandum opinion.

Dabney L. Friedrich

United States District Judge

After reading through Judge Friedrichs 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 servicesnot that Im bothered by unscrupulous attorneys ripping off unscrupulous human beings. At any rate Kevin McCarthys 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 Trumps MAGA cult base.

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Why is Kevin McCarthy Promising to Remove Parents from the Terrorist Watch List? - Daily Kos