Anti-Riot Act

Court pares back federal Anti-Riot Act

But 4th Circuit judges uphold the use of the 1968 law to convict two men for violence at the "Unite the Right" rally in Charlottesville, Va.

By JOSH GERSTEIN

A federal appeals court has narrowed an anti-riot law the Trump administration is wielding to bring federal charges against individuals accused of fueling civil unrest following the death of George Floyd in an encounter with Minneapolis police.

However, the Richmond-based 4th Circuit Court of Appeals upheld the use of the federal statute against two California men convicted of spurring violence in connection with the white supremacist Unite the Right rally in Charlottesville, Va., in August 2017, Michael Miselis and Benjamin Daley.

The three-judge appeals court panel unanimously concluded that language in the Anti-Riot Act that makes it a crime to “encourage,” “promote” or urge a riot is unconstitutionally overbroad because it encompasses speech protected by the First Amendment.

While the decision pares back the 1968 law, the outcome could have been worse for the Justice Department.

Last year, a federal judge in Santa Ana, Calif., ruled the entire federal Anti-Riot Act unconstitutional because of the same free-speech concern. Based on that ruling, the judge tossed out a criminal case filed there against three other alleged members of the Rise Above Movement who did not travel to Charlottesville. Prosecutors have appealed that decision to the San Francisco-based 9th Circuit.

The ruling Monday from the 4th Circuit does not go as far, leaving in place federal authorities’ ability to use the law against individuals who “organize” or “incite” a riot.

“In our view, the Anti-Riot Act sweeps up a substantial amount of speech that retains the status of protected advocacy,” Barack Obama appointee Albert Diaz wrote in a 46-page decision joined by Bill Clinton appointee Robert King and Donald Trump appointee Allison Rushing. “The appropriate remedy is to invalidate no more than the language responsible for the statute’s overbreadth.”

Back in May, Attorney General William Barr specifically cited the anti-riot statute as he warned that the federal government intended to prosecute those involved in riots.

“It is a federal crime to cross state lines or to use interstate facilities to incite or participate in violent rioting. We will enforce these laws,” Barr told reporters at a news conference.

The 4th Circuit rejected arguments from lawyers for Miselis and Daley that the statute is unconstitutionally vague. And perhaps most crucially for the two defendants, the judges concluded that the men’s conduct at events in California and Charlottesville was physical and violent enough that it went beyond the speech that the court found to be legally protected.

“The defendants admitted to having each (as part of an assemblage of three or more) ‘personally committed multiple violent acts’ — including but not limited to pushing, punching, kicking, choking, head-butting, and otherwise assaulting numerous individuals, and none of which ‘were in self-defense,’” Diaz wrote, quoting the facts Miselis and Daley stipulated to as part of conditional guilty pleas that allowed them to challenge the underlying law.

“The defendants’ offenses have manifestly nothing to do with speech tending to encourage, promote, or urge others to riot; mere advocacy of violence; or any other First Amendment activity,” Diaz concluded.

A spokesman for the U.S. Attorney’s Office in Roanoke, which handled the case, declined to comment on the ruling.

Lawyers for Miselis and Daley issued a statement saying they were considering "potential next steps" in the case, which could include requesting further review from the full bench of the appeals court or from the Supreme Court.

"Today, the Fourth Circuit became the first federal appellate court in the United States to hold that the Anti-Riot Act is unconstitutionally overbroad because it infringes on First Amendment protected speech and protest," attorneys Lisa Lorish and Raymond Tarlton wrote. "This ruling has particular significance as the Department of Justice is actively using this law to prosecute individuals in the aftermath of the protests following the murder of George Floyd after decades of little to no use of the law. We are nonetheless disappointed that the Court decided to sever only parts of the statute instead of striking it down in its entirety."