[00:00:00] Speaker 01: case number 22 52 58 Celine parents and unincorporated association at our balance. [00:00:08] Speaker 01: Mrs Mary Big Garland in his official capacity as attorney general of the United States of America. [00:00:14] Speaker 01: Mr Muse for the balance. [00:00:15] Speaker 03: Mr Freeman for the [00:00:28] Speaker 05: Good morning, may it please the court, I'm Robert Muse. [00:00:30] Speaker 05: It's my honor and privilege to represent the plaintiff's appellants in this important constitutional challenge to a Department of Justice policy directive, and I'll be reserving two minutes of my time for rebuttal. [00:00:41] Speaker 05: Plaintiffs have made plausible allegations of facts, establishing each element of standing in light of the substantive claims that have been advanced. [00:00:49] Speaker 05: That is, plaintiffs are suffering an injury in fact that is fairly traceable to the actions of the attorney general, and that can be redressed by a court order. [00:00:57] Speaker 05: So like the challenger in Meese versus Keene, the plaintiffs are facing a Hobson's choice between foregoing protected activity. [00:01:06] Speaker 05: In this case, it's speaking out at school board meetings in opposition to certain policies and curricular. [00:01:12] Speaker 05: The very activity the attorney general claims is threatening, harassing and intimidating and suffering not only injury to their reputation as they are now deemed domestic terrorists and criminal threats, [00:01:25] Speaker 05: for engaging in such activity, but also subjecting themselves to federal investigation, surveillance, and record keeping on account of this activity. [00:01:34] Speaker 05: And the facts in this case actually far more egregious than the Meese case. [00:01:38] Speaker 05: In that case, Keane, who was the challenger, he simply wanted to exhibit films that the government had labeled as political propaganda. [00:01:47] Speaker 05: No one was forcing him to show films. [00:01:49] Speaker 05: No one was preventing him from showing the film. [00:01:52] Speaker 05: No one was subjecting him to federal investigation and surveillance. [00:01:55] Speaker 05: for showing the film in that the term itself political propaganda as the Supreme Court ultimately concluded was rather innocuous. [00:02:03] Speaker 05: So there was nothing in the Mies case that regulated constrained or compelled any action on his part. [00:02:09] Speaker 05: And there was nothing that Keene intended to do, the showing of the film that was prescribed by any law. [00:02:14] Speaker 05: It was nothing. [00:02:15] Speaker 05: Yet the US Supreme Court found that he had standing despite ultimately ruling against him on the merits. [00:02:21] Speaker 05: But also, and I wanna highlight this court's decision in Fortich versus United States. [00:02:26] Speaker 03: And I believe the opinion was- Mr. Muse, the appellants here say that they are not planning to undertake any unlawful activities, right? [00:02:35] Speaker 03: That they are simply planning to speak out on issues of importance. [00:02:39] Speaker 03: to them. [00:02:40] Speaker 03: And the Department of Justice has said that it doesn't plan to enforce, you know, that doesn't plan to take any kind of enforcement actions against people who are exercising their free speech rights. [00:02:53] Speaker 03: So how does that meet the standard for pre-enforcement review, which is a pretty high standard to meet? [00:03:00] Speaker 05: Well, Your Honor, the existence of this policy directive, and he's not rescinded it. [00:03:06] Speaker 05: He's not recanted it. [00:03:08] Speaker 05: It's quite threatening. [00:03:10] Speaker 05: And recall, remember as well that the pretext really for this policy was that letter by the National School Board Association, which as the allegations of the complaint make clear, was drafted in collusion with and specifically as a pretext for this particular policy. [00:03:29] Speaker 05: And quite frankly, the attack on the targeting of the parents is very much what the purpose and effect of this was. [00:03:37] Speaker 05: So they could silence their speech, right? [00:03:40] Speaker 05: You're creating this conundrum, right? [00:03:41] Speaker 05: We say, look, this policy was drafted to silence the speech of these parents, which is constitutionally protected. [00:03:51] Speaker 05: And they don't have any business even meddling in the matters of school board policy. [00:03:56] Speaker 04: What policy council? [00:03:57] Speaker 04: I'm missing it. [00:03:58] Speaker 04: I can't find any policy. [00:04:00] Speaker 04: We see policy all the time. [00:04:02] Speaker 04: And if it were only a policy, it wouldn't be reviewable. [00:04:06] Speaker 04: But I don't even see a policy. [00:04:07] Speaker 04: What's the policy? [00:04:09] Speaker 05: It's a directive by the Department of Justice. [00:04:12] Speaker 04: Wait, wait, wait. [00:04:13] Speaker 04: Let's be very precise. [00:04:15] Speaker 04: Sure. [00:04:16] Speaker 04: You're making some really extraordinary claims. [00:04:21] Speaker 04: What, are you using the word directive now or is it a policy? [00:04:25] Speaker 04: Which is it as a legal matter that you are asserting? [00:04:30] Speaker 05: Your Honor, a policy can be a directive, a position taken by the Department of Justice. [00:04:36] Speaker 04: No, under the APA, a policy is, if you understand APA law, is something that's not even reviewable. [00:04:43] Speaker 04: Is that what you're talking about, something like that? [00:04:46] Speaker 04: No, Your Honor, I'm talking about the Department of Justice taking... And a directive is something different under APA notions. [00:04:52] Speaker 04: It's more like a rule. [00:04:54] Speaker 04: So I'm curious as to what you think you're asserting. [00:04:56] Speaker 04: What is it you're asserting? [00:04:57] Speaker 05: All right, it's not, we don't have an APA claim involved here at all. [00:05:01] Speaker 04: I know conceptually I'm trying to understand because this case law, standing case law that makes it clear that you haven't asserted enough, layered in other such cases, you haven't asserted enough to show standing. [00:05:15] Speaker 04: So I'm trying to understand what it is you think the government has done. [00:05:19] Speaker 04: It has directed. [00:05:22] Speaker 04: In a reviewable policy or directive, however you want to put it. [00:05:26] Speaker 05: Sure. [00:05:26] Speaker 05: It's directed his law enforcement authorities, the FBI in particular, and two divisions of the FBI, the criminal division and the counterterrorism division to create these threat tags to conduct surveillance and investigation of parents who are engaging in constitutionally protected activity. [00:05:45] Speaker 04: Is that what the memo says? [00:05:51] Speaker 05: Your Honor, it's not just the memo. [00:05:53] Speaker 04: That's what the memo says. [00:05:55] Speaker 04: Counsel, just answer me, because I really am trying to understand, is that what you just asserted something that was rather extraordinary? [00:06:02] Speaker 04: Is that what's in the memo? [00:06:03] Speaker 04: I don't remember. [00:06:04] Speaker 04: Maybe I'm looking at the wrong record. [00:06:06] Speaker 04: That's not what the memo says. [00:06:07] Speaker 05: Your Honor, the memo says, quote, the Department takes these incidents seriously and is committed to using its authority and resources to discourage [00:06:18] Speaker 05: these threats, identifying when they occur and prosecute them when appropriate. [00:06:22] Speaker 05: Consistent with this, and a FBI whistleblower provided to Congress, and we cited it in our complaint as well, an email of the FBI Criminal Division and Counterterrorism Division taking this directive and creating those threat tags [00:06:43] Speaker 05: for individuals who conduct this investigation. [00:06:47] Speaker 05: Why would the criminal division and the counter-terrorism division create threat tags if not the reasonable inference from all these facts is that the Department of Justice, the attorney general, considers these parents who are engaging in their constitutionally protected activity are not domestic terrorists or criminal threats. [00:07:10] Speaker 04: What is in the attorney general's memo [00:07:13] Speaker 04: that focuses on these parents, as you call. [00:07:16] Speaker 04: How are the allowance in any way focused on? [00:07:19] Speaker 04: It's a memo that suggests that there may be an issue with respect to these parents. [00:07:27] Speaker 04: We're not talking about protected First Amendment activity. [00:07:32] Speaker 04: That's not our concern. [00:07:34] Speaker 04: We're concerned about unprotected activity, and we want to see what's there. [00:07:38] Speaker 04: Now, how do you have standing to challenge that? [00:07:41] Speaker 05: Well, this is this is not a Laird versus Tatum, which just had merely subjective chilling effect and probably just the is a practical effect. [00:07:50] Speaker 05: Laird versus Tatum dealt with the Department of Defense surveillance program. [00:07:55] Speaker 05: Department of Defense doesn't have authority to enforce criminal law. [00:07:58] Speaker 05: And not only was this not only subjective chill on the parents, but also the injury to their reputation. [00:08:08] Speaker 05: Now, remember, Judge, in a case that you decided, Fortich, you wrote that opinion. [00:08:13] Speaker 05: And there, there was no, and consistent with Keene, it was a challenge to the Elizabeth Morgan Act. [00:08:20] Speaker 05: And the court made the point [00:08:22] Speaker 05: that case law, and this is almost a direct quote, case clause clear that when reputational injury derives directly from an unexpired and unretracted government action, the injury satisfies the requirement of Article 3. [00:08:35] Speaker 05: And you went on to point that even though the act did not directly mention Dr. Fortich or his child, [00:08:41] Speaker 05: His reputation in standing was harmed in the community by, and this was the language you used, effectively branding him a child abuser and unfit parent. [00:08:51] Speaker 05: Here, the AG is effectively branding plaintiffs, domestic terrorists, and criminals. [00:08:57] Speaker 05: Reputation, and we even cited in just the numerous news stories that makes the point that why is the attorney general targeting parents as domestic terrorists? [00:09:06] Speaker 04: We just had- I think you're staying here. [00:09:08] Speaker 04: You're stating a conclusion that your papers don't support. [00:09:12] Speaker 04: Fortage is quite different. [00:09:13] Speaker 04: It was very focused on an individual, and it was the clear connection between what the government was reporting to do and the individual who's raising the claim. [00:09:22] Speaker 04: There is no clear connection here. [00:09:24] Speaker 05: They're absolutely a judge and you have to ignore the facts. [00:09:27] Speaker 05: Look at the facts of 75 through 78 that we allege with this connection between the NSBA and the attorney general to create the pretext for this particular policy to fire a shot across the Bauer parents who are complaining about school board meetings. [00:09:40] Speaker 05: You'd have to ignore the allegations in the complaint [00:09:43] Speaker 05: to reach that conclusion, or parse them out separately. [00:09:47] Speaker 05: We haven't alleged that the October 4 memorandum is the sum of all this policy directive. [00:09:52] Speaker 05: You have other aspects of this, including the email that the whistleblower disclosed to Congress. [00:10:00] Speaker 05: And I'm well over my time, and I'd like to reserve some of my time. [00:10:04] Speaker 03: Mr. Muse, I have a question relating to standing. [00:10:08] Speaker 03: Even if we were to assume for the sake of argument that you have an injury here from this memo, how is that injury imminent here? [00:10:17] Speaker 03: I mean, I guess another way of asking that is why is your harm ripe? [00:10:22] Speaker 03: in this case, right? [00:10:23] Speaker 03: Because it's possible maybe to read the attorney general's memorandum as covering, you know, speech that is constitutionally protected, right? [00:10:34] Speaker 03: Using the word harassment. [00:10:37] Speaker 03: However, you know, the Department of Justice has said that it does not plan to, you know, enforce against just pure speech. [00:10:44] Speaker 03: So how is the injury imminent or right in this case? [00:10:48] Speaker 05: Yes, I'm certainly that shots been fired across the bow, but the reputational injury component of it doesn't read demand there was nothing that was imminent in the means first keen or for titch where the the government government has this labeling of individuals and misses even more to the point in the fact that it was. [00:11:06] Speaker 05: It had a chilling effect on his ability to engage in speech. [00:11:10] Speaker 05: There was no imminent enforcement. [00:11:11] Speaker 05: That's why I went through the point about why Meese versus Keene is so important when you talk about this reputational injury and harm. [00:11:18] Speaker 05: It doesn't require some actual enforcement. [00:11:20] Speaker 05: And the threat of investigations themselves, we've cited tons of cases, Clark, Gibson, and so on. [00:11:26] Speaker 05: The threat of investigation itself has a chilling effect that creates this here and now subservience to the government. [00:11:32] Speaker 05: And it's that chilling effect that the courts need to be concerned about. [00:11:37] Speaker 02: So you assert that your clients have been labeled domestic terrorists by this policy. [00:11:44] Speaker 02: And from what I could tell, the mention of the word domestic terrorism was in a letter from a different organization, the NSBA. [00:11:52] Speaker 02: How is that attributable to the attorney general? [00:11:55] Speaker 05: Right, like we've alleged multiple facts in the complaint, Your Honor, that that NSBA letter was drafted in collusion with the Biden administration and the Department of Justice to create the pretext for this issuance of the policy directive, how have you want to write it, the October 4th memorandum. [00:12:15] Speaker 05: And pause and just think about this in terms of whether or not it's a reasonable inference to draw [00:12:21] Speaker 05: that there's a designation, the government's imprimatur or endorsement of this domestic terrorism label. [00:12:28] Speaker 05: One is, again, you had the collusion between the Department of Justice and the NSBA and the Biden administration. [00:12:35] Speaker 05: What's the factual basis for that? [00:12:36] Speaker 05: That's what we've alleged in the complaint. [00:12:39] Speaker 05: In fact, it's come out in the House Judiciary Committee. [00:12:41] Speaker 05: The facts in the complaint are the facts that we're dealing with here. [00:12:47] Speaker 04: We've missed them. [00:12:49] Speaker 04: Tell us again. [00:12:50] Speaker 04: I really don't know what you're talking about. [00:12:53] Speaker 05: You can read Paragraph 74. [00:12:56] Speaker 05: through 79 in the in the complaint that's at joint appendix pages 20 and 21. [00:13:04] Speaker 05: And we specifically alleged that the NSP letter was drafted in cooperation in conjunction with the Biden administration ordered to create the pretext for the AG policy. [00:13:12] Speaker 05: That is a factual statement. [00:13:15] Speaker 05: And that's as and I'm reading it directly. [00:13:17] Speaker 02: I'm sorry. [00:13:17] Speaker 02: I'm sorry. [00:13:18] Speaker 02: Wouldn't you have to support that conclusion with actual facts like there was a meeting at which they met and wrote this letter? [00:13:25] Speaker 02: Just saying that they colluded, is that sufficient here? [00:13:28] Speaker 05: Well, in addition to the other, I mean, we look at the Paragraph 75, and, frankly, it is. [00:13:34] Speaker 05: Because we have noticed pleading still under Rule 8, despite Iqbal and Twombly. [00:13:40] Speaker 05: That is a statement of fact that the court has to accept as true. [00:13:43] Speaker 05: You can't just take a statement of fact, say, we don't believe it's true, and then claim it a conclusory statement or a threadbare recital. [00:13:50] Speaker 05: It's a statement of fact that we will ultimately prove. [00:13:53] Speaker 04: And we have a series of other facts that are- Actually, in your instance, it's a statement of conclusion. [00:13:58] Speaker 04: You're drawing from facts that don't support it, and you're stating the conclusion which you think is favorable. [00:14:03] Speaker 04: And that's exactly what Igbo says you can't do. [00:14:06] Speaker 05: With all due respect, Your Honor, that's a statement of fact. [00:14:09] Speaker 05: It's not a legal conclusion. [00:14:10] Speaker 05: It's a statement of fact. [00:14:11] Speaker 05: And again, I'd ask you to look at all those paragraphs, 74 through 78 in particular, on those pages. [00:14:19] Speaker 05: Just because you might not agree with the facts, [00:14:22] Speaker 05: doesn't mean you can dismiss the facts at this stage. [00:14:24] Speaker 05: Now, we're going to have the burden of having to prove them. [00:14:26] Speaker 05: But we're here because they dismissed the complaint at the pleading stage. [00:14:30] Speaker 05: You have to accept these facts as true. [00:14:31] Speaker 05: And that's a statement of fact. [00:14:32] Speaker 05: It's not a legal conclusion. [00:14:34] Speaker 05: And it has to be accepted as true. [00:14:35] Speaker 05: And then what is the business? [00:14:36] Speaker 05: What businesses the attorney general have to begin with with local school board meetings? [00:14:40] Speaker 05: There's no federal jurisdiction for that. [00:14:42] Speaker 05: You can investigate that which you don't have subject matter jurisdiction over. [00:14:45] Speaker 05: And you have the criminal division and the counterterrorism terrorism vision actually involved in this. [00:14:50] Speaker 04: and you're not seeing how that there's that there's this uh reasonable your argument in this case just from i don't try and understand it your argument is anyone in the country is part of a group that opposes things that are being done in the public schools or any schools and they are put themselves in a protest category anyone in the country who is in that kind of a group [00:15:17] Speaker 04: can read this memorandum and say, we are threatened and we can sue and block it. [00:15:23] Speaker 05: You're right. [00:15:24] Speaker 05: I wouldn't go necessarily that broadly because we have specific, um, specific plaintiffs, particularly. [00:15:32] Speaker 04: Can you answer that for me? [00:15:34] Speaker 04: Cause I'm trying to understand the reach of your theory. [00:15:36] Speaker 04: You're suggesting that you listed two particular groups here, but as I read you and hear your argument, you're suggesting that anyone [00:15:45] Speaker 04: who subscribes to the views that are supported by the appellants, has standing to come in and challenge the memorandum that was circulated by the attorney general, is that right? [00:15:56] Speaker 05: No, I'm saying I've brought this complaint on behalf of specific plaintiffs who have specific standing. [00:16:02] Speaker 05: The remedy, the redress for the harm would certainly inure to the benefit of a lot of people, right? [00:16:07] Speaker 05: Courts have said time and again, it's in the public interest to protect First Amendment rights. [00:16:13] Speaker 05: And so certainly it would inure to the benefit of others who find themselves in the same position. [00:16:18] Speaker 05: But certainly five of the plaintiffs are from Loudoun County, which was the epicenter [00:16:22] Speaker 05: of this entire controversy. [00:16:26] Speaker 05: So our standing is for these individuals. [00:16:28] Speaker 05: The remedy you may grant in this case, a court ultimately, will certainly inure to the benefit to a much larger group, as is typically the case when you're protecting constitutional rights. [00:16:40] Speaker 04: Tim, I take one more minute just to get your response on this, because it leaves out as so straightforwardly clear to me in any event as someone who [00:16:49] Speaker 04: responsible thinking about the law on my side of these cases. [00:16:55] Speaker 04: How is this right? [00:16:57] Speaker 04: Seems to me, US v Texas, among other cases, absolutely clear that no matter how offended you may feel, this is not something, as Justice Scalia said, where the court ought to be speculating about what the government may or may not do when they haven't done anything. [00:17:15] Speaker 04: There's no rule. [00:17:16] Speaker 04: There's no directive. [00:17:17] Speaker 04: They haven't taken any action. [00:17:19] Speaker 04: They've disclaimed any connection with terrorism, as you say. [00:17:25] Speaker 04: It's not a ripe case. [00:17:28] Speaker 04: And we can decide on those grounds now. [00:17:32] Speaker 05: Right. [00:17:33] Speaker 05: I disagree, obviously, as I mentioned in the case Meese versus Keene, when you have a reputational injury, this sort of eminence of enforcement. [00:17:41] Speaker 05: But also, there's nothing that's been retracted. [00:17:45] Speaker 05: In fact, I'm not sure if you watched the hearings on Wednesday, the attorney general refused to retract. [00:17:50] Speaker 03: Mr. Meese, can you please connect the rightness question to your First Amendment alleged harm, to the chilling of your speech and reputational harm? [00:18:00] Speaker 05: The reputational harm and injury is part of the chilling. [00:18:05] Speaker 05: They're related. [00:18:06] Speaker 03: They're related, but they're also they're also distinct. [00:18:10] Speaker 05: Yeah, but Meese versus Keene was an issue of first member protection dealing with, not with any enforcement action, but with injury. [00:18:19] Speaker 05: This shot's already been fired. [00:18:22] Speaker 05: It was fired on October 4, and we know that the FBI is currently doing investigations under this EDU officials' threat tag. [00:18:31] Speaker 05: This program exists right now. [00:18:34] Speaker 05: And the attorney general, like I mentioned, you probably may or may not have saw the testimony even on Wednesday, he refused to recant and retract what he said in this October 4 memorandum and what he's planning on doing with his Department of Justice. [00:18:51] Speaker 05: This is here and now. [00:18:52] Speaker 05: Nothing's been recanted. [00:18:53] Speaker 05: Nothing's been rescinded. [00:18:55] Speaker 05: And it's like what Judge Edwards said in the Fortich case, case law is clear that where reputational injury derives directly from an unexpired and unretracted government action, this is government action, that injury satisfies the requirements of Article III. [00:19:12] Speaker 05: And that would be the crimes of Article three and not only standing, but also rightness. [00:19:16] Speaker 05: So we believe we have standing to advance this challenge based on the effects alleged in our first cemented complaint. [00:19:23] Speaker 03: Thank you, Mr. Muse. [00:19:24] Speaker 03: We'll give you a couple minutes for rebuttal. [00:19:26] Speaker 05: Thank you. [00:19:33] Speaker 00: Good morning, Your Honor. [00:19:34] Speaker 00: May please court Mark Freeman for the attorney general. [00:19:37] Speaker 00: For all the reasons given in Judge Friedrich's excellent opinion below, we think this case was quite properly dismissed for lack of a justiciable controversy. [00:19:44] Speaker 00: Happy to address any questions the court may have. [00:19:48] Speaker 03: Mr. Freeman, I am interested in this question of whether this is conceptually better viewed as a question of no Article III standing or no Article III ripeness, or if you think that matters. [00:20:04] Speaker 00: So obviously, it doesn't matter the ultimate disposition under 12b1. [00:20:07] Speaker 00: Also, as the court is aware, in pre-enforcement challenges, concepts of ripeness and standing tend to overlap. [00:20:14] Speaker 00: You can either think of it as the plaintiff has no imminent actual injury now, such that there's a concrete and particularized [00:20:22] Speaker 00: arm that needs to be addressed by the court standing lens, or you can think of it as if something's going to happen to this plaintiff warranting judicial intervention. [00:20:32] Speaker 00: It hasn't happened yet. [00:20:33] Speaker 00: It may not happen in the words of Texas versus United States in the way that plaintiffs predict, or it may not happen at all. [00:20:41] Speaker 00: Both of those are appropriate ways to look at this. [00:20:42] Speaker 00: Here we are looking at this and the district court looked at this [00:20:46] Speaker 00: as a pre-enforcement standing inquiry in the way of SBA list in the Supreme Court and just the juxtaposition between the sort of facts that were at issue in SBA list where you had a specific plaintiff who wanted to make a specific statement and had been threatened by the Ohio Commission in that case under the Ohio statute that was at issue with prosecution and then [00:21:08] Speaker 00: When the case went forward, they were threatened again. [00:21:11] Speaker 00: And the Supreme Court said, here you have a plaintiff who has conduct that is inflected with the First Amendment interest, that has colorably alleged that their conduct is proscribed by the thing that they challenge. [00:21:24] Speaker 00: And indeed, they had been [00:21:26] Speaker 00: had been prosecuted by the state of Ohio for it. [00:21:29] Speaker 00: And furthermore, that they face a threat, a realistic, imminent threat of prosecution. [00:21:33] Speaker 00: And there the Supreme Court stressed that the Ohio agency had already directly threatened those plaintiffs. [00:21:40] Speaker 00: That in those circumstances, the high bar for a pre-enforcement challenge. [00:21:44] Speaker 00: And here we have nothing like that. [00:21:46] Speaker 03: So Freeman, do you think, so if the Department of Justice were to, [00:21:52] Speaker 03: to take enforcement actions against speech that was purely harassing in some sense and unconnected to any actual threat. [00:22:03] Speaker 03: Would that be a constitutional problem? [00:22:06] Speaker 00: So let me answer that in a couple of ways. [00:22:08] Speaker 00: I mean, first, I realize it's not the court's question, but there's no allegation in the complaint that plaintiffs intend to do anything that would constitute harassment. [00:22:15] Speaker 00: Indeed, they make clear in their. [00:22:17] Speaker 03: Harassment is a very, harassment unconnected from threats is a very subjective standard, right? [00:22:23] Speaker 03: Is a vociferous parent at a meeting, is that harassment or is that free speech? [00:22:29] Speaker 03: I mean, you know, the memorandum [00:22:31] Speaker 03: Mostly is connected to rats, but there are there is some language that's a bit loose about whether it might can, you know, include something that somebody might think is harassment. [00:22:42] Speaker 00: right? [00:22:43] Speaker 00: So let me address that the memorandum is concerned with violence and the threats of violence and read as a whole. [00:22:48] Speaker 00: I understand the court's point about the language of intimidation, intimidation and harassment, and I'll address that specifically. [00:22:53] Speaker 00: But I think just first read as a whole, it is clearly concerned with unlawful criminal threats and threat to school board officials. [00:23:01] Speaker 00: the the. [00:23:03] Speaker 00: Random refers people. [00:23:04] Speaker 00: This is just that this is page two of the supplemental joint appendix to crimes to protecting public officials for fear for their safety or criminal conduct directed at school personnel. [00:23:14] Speaker 00: I mean, this is this is about. [00:23:17] Speaker 00: Violations of law and specifically with respect to harassment and intimidation. [00:23:22] Speaker 00: The attorney general here is referring to there is a small number of federal crimes that use the phrase intimidation and harassment in connection with speech that is not protected by the First Amendment, in the sense of Virginia versus Black, for example. [00:23:35] Speaker 00: I'm thinking, for example, of 18 USC 2261, capital A. That's intimidation or harassment using the wires or the mails to put a person in fear of bodily harm. [00:23:46] Speaker 00: So, for example, if you if someone called in a bomb threat to a school board meeting in another state that could state a violation of federal law, that's the sort of intimidation and harassment we're talking about. [00:23:58] Speaker 03: And, you know, I understand that that's my is the government saying it is only intimidation and harassment that is linked [00:24:04] Speaker 03: to a specific federal crime that is not protected by the First Amendment? [00:24:09] Speaker 00: The Attorney General has, and I can be clear today, the Attorney General has been very clear every time he's been asked about this. [00:24:14] Speaker 00: When parents want to protest, vociferously protest the curricular choices of their local school boards, of course that's protected by the First Amendment. [00:24:23] Speaker 00: And the very second sentence of this memorandum says, [00:24:26] Speaker 00: spirited debate of this kind is protected by the Constitution. [00:24:30] Speaker 00: What the Attorney General was saying here was that threats of violence to public officials, that's a different question. [00:24:36] Speaker 00: And that's the distinction drawn in the second sentence. [00:24:38] Speaker 00: And that was the concern of the Department of Justice, not parents who object to what their school boards are teaching. [00:24:45] Speaker 02: So the standard applied [00:24:47] Speaker 02: in Susan B. Anthony is whether something arguably is prescribed. [00:24:52] Speaker 02: And given the loose language in this memo that talks about harassment and intimidation, [00:25:00] Speaker 02: Isn't it arguable that conducts such as shouting and singing at meetings that cuts other people off is harassing or intimidating, or leaving all your shoes to, I guess, intimidate, it could be arguably intimidating, school administrators saying we're all gonna leave your school. [00:25:18] Speaker 02: I just think that given that the standard is kind of loose, arguably prescribed, and the language here is kind of loose, harass or intimidate, it's not clear to me that that alternative ground [00:25:29] Speaker 02: that Judge Friedrich relied upon is necessarily correct. [00:25:33] Speaker 00: So I appreciate that. [00:25:34] Speaker 00: Let me address that in a couple of ways. [00:25:37] Speaker 00: First is that for the reasons I've explained, I think reading the memo as a whole, what is concerned about is violence and the threat of violence. [00:25:42] Speaker 00: And I think those, when anyone reading this memorandum would understand that that's what the attorney- But we're in the land of arguably- I understand. [00:25:50] Speaker 00: And then secondly, these plaintiffs [00:25:57] Speaker 00: don't allege that there's any reason to believe that this conduct is focused on them. [00:26:01] Speaker 00: We're talking here as the Judge Edwards questioned before. [00:26:06] Speaker 00: There's nothing in this case suggesting any reason why these six plaintiffs are differently situated than any other parents who object to what their school boards. [00:26:15] Speaker 02: That seems to be a different issue, like who they are compared to what they did and what they do or did arguably could be prescribed by this policy. [00:26:26] Speaker 00: So Judge Friedrich said two things. [00:26:28] Speaker 00: She said, first, as to this arguably prescribed piece of SPLH, she said two things. [00:26:34] Speaker 00: First, she said, there's nothing in this memorandum that prohibits anything. [00:26:38] Speaker 00: The memorandum doesn't establish any rule of conduct. [00:26:42] Speaker 00: It doesn't prohibit anything. [00:26:44] Speaker 00: It's an internal memorandum. [00:26:47] Speaker 00: So that's point. [00:26:48] Speaker 00: And then she said, if it did. [00:26:50] Speaker 00: If it did. [00:26:51] Speaker 00: But it's very, I mean, this is a memorandum from the subject line to the very end that is a statement by the attorney general that threats to public officials are of concern to the Department of Justice. [00:27:02] Speaker 00: And the one concrete thing it does is direct that the US Attorney's Office and the FBI meet with state and local prosecutors. [00:27:09] Speaker 00: That's what the memorandum does. [00:27:11] Speaker 00: And Judge Friedrich, I think, quite rightly read this to say, this is not prohibiting anything. [00:27:16] Speaker 00: But if you thought it did, [00:27:18] Speaker 00: then you still have to deal with the fact for standing purposes that these plaintiffs are no differently situated than any other plaintiff. [00:27:25] Speaker 02: I don't think that was her alternative polling. [00:27:27] Speaker 02: I read her to be saying, if it did prescribe conduct, it wouldn't prescribe these parents conduct because they're just protesting in a lawful manner. [00:27:39] Speaker 02: They're not alleging that they're breaking the law. [00:27:42] Speaker 00: Yes. [00:27:42] Speaker 02: But I think we need to look at their, this is highly, [00:27:46] Speaker 02: hypothetical because she's saying it doesn't prescribe anything. [00:27:49] Speaker 02: But if it did, it would prescribe, I guess, harassing and intimidating conduct that they're not engaging in. [00:27:55] Speaker 02: But I just think it's unclear under an arguably prescribed standard that shouting and singing the national anthem to cut other people off isn't harassing or intimidating. [00:28:07] Speaker 00: But I hear the court. [00:28:08] Speaker 00: And if that's how the court views it, then I think there are several other ways to affirm the district court here. [00:28:13] Speaker 00: One is the reasons Judge Edwards was noting previously, there's no indication that these six particular plaintiffs are any differently situated than any other parent. [00:28:22] Speaker 00: I get that. [00:28:23] Speaker 02: That wasn't what I was asking. [00:28:24] Speaker 00: No, I agree. [00:28:26] Speaker 00: And then the second point is that just on the SBA list, while we're talking the SBA list standard, remember the SBA list is three steps. [00:28:32] Speaker 00: And the first one agrees. [00:28:34] Speaker 00: They've alleged that they want to engage in conduct protected by the First Amendment. [00:28:37] Speaker 00: No protest there. [00:28:38] Speaker 00: The second was this arguably proscribed question. [00:28:41] Speaker 00: And the third was alleged specific facts supporting a concrete imminent risk of enforcement. [00:28:47] Speaker 00: And there's no such demonstration. [00:28:51] Speaker 03: Mr Freeman do you think that like a memorandum such as the attorney general's memorandum here can can ever be subject to judicial review? [00:29:00] Speaker 00: I mean I think it'd be very difficult. [00:29:02] Speaker 00: This is an internal memorandum and if you imagine that this were a speech that the attorney general gave that said we're very worried about [00:29:09] Speaker 00: threats of violence against public officials. [00:29:11] Speaker 00: That's a bad thing in our democracy, and I want everyone who works for me to be attentive to ways that the FBI or the Department of Justice can bring its resources to bear to prevent those. [00:29:22] Speaker 00: I mean, agency officials say that kind of thing all the time. [00:29:25] Speaker 00: You would need to have something very concrete and specific. [00:29:28] Speaker 00: And I'm not asking the court to write anything categorical. [00:29:30] Speaker 00: You don't need to write anything categorical. [00:29:33] Speaker 00: But pre-enforcement challenges are a rare animal in courts for good reasons. [00:29:37] Speaker 00: And when the courts permit pre-enforcement challenges to anything, [00:29:42] Speaker 00: enforcement here is a little strange because I don't think there's anything to enforce. [00:29:44] Speaker 00: But when the courts permit plaintiffs who have not been actually made the subject of any government conduct come in and nonetheless ask for a constitutional adjudication. [00:29:53] Speaker 00: We require quite a lot. [00:29:55] Speaker 00: I think if you just read the SBA list where this court's cases like Reem or Woodhull Freedom Foundation, this court insists on quite a lot before you find that there's a concrete controversy warranting an audit for adjudication. [00:30:08] Speaker 04: Let me come back to what Judge Rao, and this has bothered me from the moment I started reading this. [00:30:15] Speaker 04: I don't know how you get around the writings here. [00:30:19] Speaker 04: Texas, the plaintiff, the state, [00:30:24] Speaker 04: was clear and identified potential enforcy. [00:30:28] Speaker 04: And their claim was, they're going to come get us. [00:30:32] Speaker 04: And Justice Scalia said, but they haven't done anything yet. [00:30:36] Speaker 04: And when they do, then we'll talk to you. [00:30:38] Speaker 04: And you can even come to court very quickly if they do something. [00:30:42] Speaker 04: Is your instinct that in analyzing the case, [00:30:47] Speaker 04: it's better to focus that way or understanding. [00:30:51] Speaker 00: As you know, we've briefed ripeness in the alternative, and these concepts really do blur in the context of pre-enforcement challenges. [00:30:58] Speaker 00: I think it's perfectly legitimate to think of it as a ripeness problem. [00:31:01] Speaker 00: And in some ways, more natural. [00:31:03] Speaker 00: The normal way that judicial review proceeds, of course, is something happens to a person, and they have a concrete controversy and fact in law, and they ask the courts for relief. [00:31:17] Speaker 00: I have no zero reason to expect that anything would ever happen to a plaintiff who is exercising First Amendment rights like this from the FBI or the Department of Justice would have anything to do with it. [00:31:27] Speaker 00: But if, God forbid, something like that happened, you would want to know. [00:31:30] Speaker 00: The district court would want to know precisely what the plaintiffs did and precisely what the FBI did before you pronounced and applied the Constitution to reach a result in that case. [00:31:40] Speaker 00: And that's the ripeness concern. [00:31:42] Speaker 00: Because right now, we're just in the air. [00:31:44] Speaker 00: In the abstract, we don't know. [00:31:49] Speaker 00: Unless the court has any further questions. [00:31:51] Speaker 03: Give you some. [00:31:52] Speaker 00: Thank you. [00:31:56] Speaker 03: Mr. Muse? [00:31:57] Speaker 03: Give you two minutes. [00:31:59] Speaker 05: The rightness issue, as we know from the case law, rightness is more loosely relaxed in the First Amendment context. [00:32:05] Speaker 05: And we know from Supreme Court cases, Dombrovsky versus Pfister, for example, the threat of sanctions may deter just as much as the actual enforcement of sanctions. [00:32:14] Speaker 05: Now, this idea that somehow this is some innocuous internal memo is absurd on its face, because this was released with great public fanfare by the attorney general himself, clearly as a shot across the bow of parents who are making noise at these school board meetings. [00:32:33] Speaker 05: And really, think about the context of this as well, as we outlined a little bit in the complaint. [00:32:37] Speaker 05: This is right when the governor's race in Virginia [00:32:41] Speaker 05: parental rights became a big a very big and strong issue and it's not just and this is the point that you know we've made the point arguing one of the errors of the disher court was to parse each of these facts as if this memo was the only government action we know from the email from the criminal division of the FBI and the counterterrorism division of the FBI that the FBI is actually taking action we have a government action that is focused on a [00:33:07] Speaker 05: on a concern that doesn't even exist. [00:33:09] Speaker 05: It was pretext. [00:33:10] Speaker 05: It was created by this NSBA. [00:33:13] Speaker 05: There is no widespread domestic terrorism at school board meetings. [00:33:16] Speaker 05: All there is is widespread public opposition to policies that this administration particularly favors. [00:33:23] Speaker 05: When you read this [00:33:25] Speaker 05: It's a mistake to pull out each one of these facts as a separate tile rather than looking at the entire mosaic. [00:33:32] Speaker 05: When you have this directive from the attorney general, the head law enforcement officer, using the FBI, firing this warning shot against parents, designating them as domestic terrorists and criminal threats, it's the only basis for them having jurisdiction. [00:33:45] Speaker 05: You not only have an injury to reputation, you also have this chilling effect on freedom of speech. [00:33:52] Speaker 05: That is that gives them standing and the case is right because it's existing right now. [00:33:56] Speaker 03: Thank you very much.