I used to think that I knew where the boundary was between speech the First Amendment protected and speech it didn’t. I’m not so sure anymore.

The increasingly vitriolic attacks being leveled against local school board members who support mandatory masking policies to protect against the spread of COVID-19 in classrooms is causing me to rethink my bedrock convictions about the line between permissible and impermissible speech.

Among the paranoid fantasies unleashed by the pandemic is one which sees a link between mask mandates and the existence of a cabal of government-sponsored child sex trafficking rings and another which claims that they cause pneumonia.

These notions may sound like Loony Tunes, but they resonate so strongly with certain parents that they’re publicly threatening school board members who won’t back off the mandates.

In early October, one parent appeared at an Auburn School Committee meeting to berate its members for “abusing” his son by forcing him to wear a mask, thereby exposing him to pneumonia. “I have two lawyers,” he said, in the course of a 10-minute rant during which he threatened to sue every committee member.

I doubt this fellow had even one lawyer on retainer, since, any half-competent attorney would realize that he lacked a good-faith basis for commencing litigation and further faced the insurmountable obstacle of sovereign immunity (a rule that protects government officials and employees from suit for making discretionary decisions in the course of carrying out their lawful duties).

In addition to his message, the man’s tone and demeanor alarmed the committee enough to ask student representatives to clear out of the room and to alert a police officer to stand by in the hallway.

The same week, a Minot mother of three children lashed out at the Regional School Unit 16 board of directors during a meeting at Poland Regional High School, comparing mandatory masking to sex trafficking. She called the district “a breeding ground for teachers, administrators, board members to human traffic these kids in our public schools.” Building to a crescendo, she cited a Biblical verse that proclaimed, “He who causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened around his neck and to be drowned in the depth of the sea.”

Emotional speeches by parents at school board meetings are nothing new.

At my very first meeting as a newly minted member of the Auburn School Committee in the late 1980s, I faced a room full of agitated parents upset that a change in school bus routes meant their little darlings wouldn’t get picked up at the front door of their homes. As I listened to their harangue, I remember thinking that this was not what I’d signed up for. Like most committee members, I was a parent of school-age children, just wanting to do my bit to help improve the educational system.

Still, during my tenure I never felt physically threatened by even the most outraged parents who held forth at committee meetings.

But like title of Bob Dylan’s song, “The times, they are A-Changing.”

Across the country, school boards are facing what they perceive as an atmosphere of increasing menace. As a result, the National School Boards Association wrote a letter to President Biden on Sept. 29, asking that “safeguards” be “put in place to protect schools and dedicated education leaders as they do their jobs.”

The letter cited “attacks against school board members and educators for approving policies for masks to protect the health and safety of students and school employees” as well as many public school officials “facing physical threats because of propaganda purporting the false inclusion of critical race theory within classroom instruction and curricula.”

Attorney Gen. Merrick Garland responded with a memo stating that the FBI would work with U.S. attorneys and federal, state, local, territorial and tribal authorities in each district to develop strategies to deal with “a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff.”

Garland was immediately attacked by red state governors and legislators who accused him of launching an assault against free speech. Yet his memo clearly acknowledged that “spirited debate about policy matters is protected under our Constitution.” Where it drew the line was at “threats of violence or efforts to intimidate individuals based on their views.”

Garland’s memo goes to the heart of the problem.

When do words extend beyond the constitutionally protected boundary of expressing opinion on matters of public interest and venture into the unlawful territory of threat and intimidation?

Words can threaten or spark physical violence, particularly in today’s highly charged atmosphere where websites, talk radio shows, extremist organizations and hyper-partisan rallies have programmed many acolytes to respond angrily and even violently to specific verbal cues.

Maine law criminalizes threatening speech “which intentionally or knowingly places another person in fear of bodily injury.”

But what if the threat is implicit rather than explicit? There context becomes crucial. An inquiry about your family’s health means one thing when it comes from a friend but something entirely different when it comes from a drug kingpin you are about to testify against in a criminal trial.

On the face of it, parents who threaten school board members with nothing more than litigation or divine wrath to protest masking policies are merely engaging in protected speech. But hypothetically what if their words were intended to imply that they or others of like mind were prepared to commit mayhem against the targets of those words if they didn’t get what they wanted?

After all, it only took a few phrases, such as “We fight like hell,” to prompt thousands of peaceful demonstrators to storm the U.S. Capitol on Jan. 6.

I used to believe in allowing people with unhinged ideas to speak their piece in public forums, figuring they would end up discrediting themselves and that free speech would ultimately result in good ideas driving out bad. But my beliefs, “they are A-Changing.”

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 15 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at [email protected]

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