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":
