I am firmly of the opinion that democracy is hard because it requires us to place procedure ahead of substance. So any attempt to address schools and school boards has to start with procedural matters that shouldn't be hard, but apparently have to be emphasized.
Naturally I am inspired by the right-wing uproar over Attorney General Merrick Garland's memo calling on the Department of Justice to coordinate with local officials in dealing with threats to school board members. The memo 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. Threats against public servants are not only illegal, they run counter to our nation's core values." Naturally Republicans took this to mean criminalizing public comments at school board meetings.
So let's start with some basic common sense. Parents showing up at school board meetings to express their views is entirely appropriate. Disrupting meetings, shouting down other speakers, and turning public meetings into shouting matches is not appropriate. Such conduct is especially inappropriate when done by activist from out of town, with no children in the schools, attempting to thwart the wishes of the majority, which has happened in some cases (though by no means all). That being said, such disruptions are merely inappropriate and not a crime, much less a federal offense. There is no reason to prosecute such conduct, but it is entirely reasonable for school boards to remove disrupters from meetings and do is necessary to maintain order, just like any other public (or private) body. And threatening school board members (or anyone else, for that matter), or stalking, trespassing, vandalism, or brandishing weapons are crimes and should be treated as such.
This should be so much common sense and not at all grounds for controversy, but apparently some people are not able to distinguish between showing up at school board meetings and speaking and threatening school board members. And, in fairness to the right wing, the National School Board Association letter that inspired the DOJ memo really did go too far, calling such threats and intimidation "domestic terrorism" and suggesting prosecution under the PATRIOT Act.
I did some basic background looking into what federal laws might be invoked. In general, I think it is best to make clear what is and is not considered a crime and what could not could not be subject to federal prosecution, so that people will have clear guidance on what is and is subject to prosecution. (And yes, I realize this also communicates what loopholes to exploit). The most obvious federal offense here is a federal ban on threats or extortion by mail or other "interstate communications" such as e-mail, texts, phones, etc. Using any of these methods to send a ransom note for a kidnapping carries a sentence of 20 years. Using these methods to threaten kidnapping or bodily harm with intent to extort money or any "other thing of value" carries a 20 year sentence. Using these methods to transmit threats of kidnapping or bodily harm without extortion carries a sentence of five years. Using these methods to threaten damage to property or reputation, or criminal charges in an attempt to extort carries a two year sentence. Threats to property or reputation without an attempt at extortion are apparently not federal crimes. Showing up in person and committing stalking, harassment or vandalism, though certainly more menacing to the target, are not federal crimes.
Kidnapping obviously is not an issue here. Are threats demanding that an official resign from office or change his/her vote, or that a candidate drop out from the election considered extortion? I don't know. Nor do I know how direct a threat or attempt at extortion has to be to qualify. No doubt there are federal precedents. But clearly any letter, e-mail, text or phone call threatening bodily harm or kidnapping is a federal crime carrying a sentence of five years. Just recently our local newspaper announced that someone was being charged under federal law for sending threatening e-mails to a local meteorologist who had run for Senate as a Republican and was considering a run for governor. It commented that this carried a potential sentence of five years. The same sentence is entirely appropriate for anyone threatening school board members.
What about domestic terrorism? Well, our terrorism statute defines domestic terrorism as:
[A]ctivities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B)appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States
Clearly threats to school board members (1) are a violation of the criminal laws of federal or state law, and (2) occur within the territorial jurisdiction of the US. I do not think there is much doubt that they are intended to influence policy of a government by intimidation or coercion. But I do not see what is being described as dangerous to human life. However, if things were to escalate from mere threats to shooting at school board members, running them off the road, or putting pipe bombs in their mail boxes, that would look very much like domestic terrorism.
And one other point. Isolated threats against school board members are a local issue to be handled locally. When threats become pervasive, it becomes a national issue and appropriate for federal prosecution.
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