Today U.S. Senator Josh Hawley (R-Mo.) sent a letter to Attorney General Merrick Garland calling on him to immediately withdraw his October 4th memo directing the FBI to involve itself with local school board meetings, which has led federal prosecutors to threaten to prosecute parents under laws that were repealed long ago.

Senator Hawley writes that a memo from the U.S. Attorney in Montana, which directed law enforcement to “contact the FBI” if a parent calls a member of a school board “with intent to annoy," was issued in response to Garland’s October 4th memo and “entirely misstates the law.”

Senator Hawley wrote, “When you testified last week about your October 4th memo directing the FBI to involve itself with parents protesting at local school boards, you told me that you were concerned only with violence and threats of violence. I did not believe you. It is now clear that neither did the people who work for you. The head federal prosecutor in at least one state has now publicly directed law enforcement to go after parents for conduct that—without question—is not criminal.”

On October 27th, at a Senate Judiciary Committee hearing, Attorney General Garland denied knowledge of the Montana memo when questioned about it by Senator Hawley.

Read the full letter here or below.

November 1, 2021 

The Honorable Merrick Garland 
Attorney General 
United States Department of Justice 
950 Pennsylvania Avenue, N.W. 
Washington, D.C. 20530 

Dear Attorney General Garland: 

When you testified last week about your October 4th memo directing the FBI to involve itself with parents protesting at local school boards, you told me that you were concerned only with violence and threats of violence. I did not believe you. It is now clear that neither did the people who work for you. The head federal prosecutor in at least one state has now publicly directed law enforcement to go after parents for conduct that—without question—is not criminal. 

The U.S. Attorney in Montana, who serves under your watch, issued a memo on October 14th directing law enforcement to “contact the FBI” if a parent calls a member of a school board “with intent to annoy.” Calling a person “with intent to annoy,” he said, “may serve as a basis for a prosecution” under federal law. This memo was published in local media for all parents to see. [1] 

That memo entirely misstates the law. No federal law prohibits calling a school board member “with intent to annoy.” Although that language previously appeared in a criminal statute, Congress repealed it nearly a decade ago—no doubt out of a concern that prosecutors in your Department would use that language to try to chill speech. Your Department even sent a letter to the U.S. Attorney’s Office in Montana to “highlight” this change. [2] Yet prosecutors under your watch, nearly a decade later, are falsely telling parents that they can be prosecuted if a member of a school board thinks the parents intended to be annoying. I can think of nothing that has a greater tendency to chill free speech of parents. 

You professed not to know about this memo when you appeared before the Senate last week. But it was entirely predictable that your head prosecutors would use your October 4th memo to go after parents for making their voices heard. Indeed, the U.S. Attorney in Montana said he was issuing his memo “pursuant to the Attorney General’s directive” of October 4th. This makes it especially galling that, even though Senator after Senator highlighted this issue for you last week, you simply doubled down and insisted that the memo clearly protected First Amendment activity. Your assertion is patently false. Your interpretation was not shared by the hundreds of parents who have contacted their congressional offices to complain, and it was not shared by your own lead prosecutor in Montana. To prevent further chilling of speech, you must immediately withdraw your October 4th memo and apologize. 

Before November 5, please provide my office with a copy of every memo any official in the Department of Justice has issued in response to your October 4th memo. 

I await the Department’s response. 

Sincerely, 
Josh Hawley 
United States Senator
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