Free Speech

Florida Anti-Riot Law 'Violates the First Amendment,' Says Court in Scathing Rebuke of Gov. Ron DeSantis

The law's "vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of," Judge Mark Eaton Walker warns.

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Enforcement of Florida's "Combating Public Disorder Act" has been partially blocked by a federal judge, who appeared to agree with those challenging the "anti-riot" law that it was unfairly targeted at black Floridians and people protesting racial injustice.

Challengers to the law argued that it had a chilling effect on free speech and protest in the state.

Lawyers for Florida Gov. Ron DeSantis countered that there had been no such chilling effect—why, just look at how black residents were out protesting on June 19 this past summer, they said, pointing to a flyer that billed itself as a "Juneteenth Black Joy Celebration" at a community park in West Palm Beach.

This mockery of an argument didn't go over so well with the court, which scolded DeSantis for having "conflated a community celebration of a federal holiday commemorating the end of slavery with a protest."

"If Governor DeSantis included this particular post to imply that any gathering of Black people in a public space is a de facto protest, Plaintiffs' concerns about how the statute's new definition of 'riot' will be enforced are indeed well-founded," wrote Chief Judge Mark Eaton Walker of the U.S. District Court for the Northern District of Florida last week. "It should go without saying that a public gathering of Black people celebrating 'Black joy' and release from bondage does not automatically equate to a protest."

In a decision that opens by detailing Florida's history of using anti-riot laws "to suppress activities threatening the state's Jim Crow status quo," Walker issued a preliminary injunction against DeSantis and several county sheriffs enforcing the new definition of rioting ensconced in Florida's House Bill 1.

The law—proposed by DeSantis following racial justice protests last summer and enacted in April 2021, just before the verdict in George Floyd's murder was handed down—stipulates that someone "commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct," and this results in "injury to another person…damage to property…or imminent danger of injury to another person or damage to property." The plaintiffs in this case—including the Dream Defenders, Black Lives Matter Alliance Broward, the Florida State Conference of the NAACP Branches, and several other groups—say this new definition could criminalize not just people acting violently but anyone who shows up at a protest or rally where violence happens to break out.

The "overbroad and vague" nature of the law could subject "non-violent protestors to criminal liability for exercising protected rights to speech and assembly," the groups argued.

Evidence they provided to the court establishes "that their members have engaged in self-censoring for fear of the challenged statute's enforcement against them," noted Walker. "The chill is evidenced by the unwillingness of their members to turn out at protest events in the weeks following HB1's enactment, the fact that some of the Plaintiffs have chosen to modify their activities to mitigate any threat of arrest at events, and the fact that at least one Plaintiff has ceased protest activities altogether."

"If this Court does not enjoin the statute's enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians," writes Walker. "This violates the First Amendment."

The anti-riot act didn't just open up the possibility that more protesters could be arrested. It also immunizes people who hurt or kill "rioters" from civil liability, while creating several new crimes (including "cyberintimidation by publication"), stiffening penalties for existing crimes, and making an array of other changes. ("There's a lot going on in this law—not all of it terrible—but there are many troubling components," wrote Reason's Scott Shackford back in April. "There is hardly a place in America where the penalties for crimes are too small, and Florida is no exception. We don't need to increase the penalties for existing crimes just because they take place during riots.")

"The intended effect of the Act is to deter the exercise of First Amendment rights by certain individuals—namely, those interested in changing the way police interact with Black communities—by threatening (in Defendant Governor Ron DeSantis's words) to have 'a ton of bricks rain down on' them," suggest the plaintiffs in their initial complaint.

Moreover, "the text, legislative history, timing, and public statements about the Act made by Florida officials all make clear that the Act was racially motivated," they argue:

The Act was first introduced in the fall of 2020 in direct response to nationwide protests sparked by multiple killings of unarmed Black people by the police. Through various procedural machinations, the Florida legislature hurried the legislation's timeline, curtailed public comment, and even gave the Act an unusual immediate effective date in order to coincide with the eve of the verdict in the murder trial of Minneapolis police officer Derek Chauvin over the killing of George Floyd, an unarmed Black man. And as noted, multiple provisions reveal that the Act was explicitly designed to single out and punish Black organizers and those who lead protests seeking to end police violence against Black people.

In his recent ruling, Walker notes that "it is well within the Florida Legislature's purview to ban coordinated violent or destructive conduct." But the language of the anti-riot law is unclear about who will be lumped in with such activity.

The judge spends ample space dissecting the law's wording. DeSantis "insists the statute is clear in that 'it merely prohibits participating in, or assisting others in participating in, violent protests,'" he points out. But this interpretation "strains the rules of construction, grammar, and logic beyond their breaking points," the judge suggests.

Here, our potential rioter must "willfully participate in a violent public disturbance." This begs the questions of (1) what does it mean to participate, and (2) what is a violent public disturbance?"

This is where things fall apart. Although both Governor DeSantis and Sheriff Williams argue that the phrase "willfully participate" is commonly understood, neither party offers an actual definition. Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? What if you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?…

A "violent public disturbance" raises similar questions. Is a violent public disturbance a peaceful protest that later turns violent? Is it a protest that creates an imminent risk of violence? Do the violent actions of three people render an otherwise peaceful protest of 300 people a violent public disturbance? Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition? At least one Florida court has defined a "riot" as a "violent public disturbance." Perhaps, then, a person riots if they willfully participate in a riot?"

Ultimately, the law creates "a wide scope of potential interpretations for individuals, failing to give them reasonable notice," while also "empower[ing] law enforcement officers to exercise their authority in arbitrary and discriminatory ways," the judge concludes. That is, it "both fails to put Floridians of ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality."

DeSantis argued that halting enforcement of the law would leave Florida powerless to stop and punish violent rioters.

But "the Governor still has the power to take any measures to prevent overt threats of violence or violence, and to declare that a danger exists to the person or property of any citizen or citizens of the state and order any sheriff to exercise their full powers to suppress riots," points out Walker. "Moreover, state law enforcement officers have numerous criminal statutes at their disposal that prohibit and punish unlawful conduct, and which protect public safety and private property."

(The judge also clarifies that he is not "enjoining all law enforcement agencies across the state from enforcing this specific law. Instead, this Court is granting the narrow relief of enjoining the Governor and three sheriffs from enforcing Florida's law against 'rioting' as defined by" this new language.)

Lastly, the judge has some words for people who would cheer this new law and new rioting language based solely on whom they presume it will target.

"It is not lost on this Court, nor should it be lost on the public, that this statute sweeps in all manner of conduct and speech, regardless of the point of view of the speaker or the cause he or she may be advocating," writes Walker. "This definition of 'riot' casts a broad net. Though Plaintiffs claim that they and their members fear that it will be used against them based on the color of their skin or the messages that they express, its vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of."

Walker cautions that "while there may be some Floridians who welcome the chilling effect that this law has on the Plaintiffs in this case, depending on who is in power, next time it could be their ox being gored."

NEXT: The Justice Department May Have Found a Winning Argument Against the Texas Abortion Law

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  1. You know what would be a fun trick? Instead of showing a svelte young boy (of color) with a dye-job (of color) holding his fist up in what looks presumably like a BLM protest, show a picture from the Jan 6 protest. You know, just for funsies. To see what the reaction would be. See how it lights up the comments.

    1. I think that’s an older woman: white hair, not dyed; shaved armpits; but I could be wrong. Still an interesting choice of picture.

        1. Well I’ll be … or not, I suppose.

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    2. You don’t find it a little embarrassing to have obese, unshowered, ungroomed, illiterate fat fatties on your side and none of the svelte and put-together?

      Donald Trump is embarrassed. His main complaint on January 6 was how fucking gross his supporters looked.

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      3. Wow, you’re going there? You might want to take another look at your side before you go stigmatizing “obese, unshowered, ungroomed, illiterate fat fatties” because you just described any random assortment of leftist activists I’ve ever encountered.

  2. “to suppress activities threatening the state’s Jim Crow status quo,”

    Will they similarly denounce gun control laws?

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  3. JANUARY SIXTH YOU FUCKING HYPOCRITES.

    1. That’s what I was thinking. But I have learned that consistent application of principles is not fashionable in this “modern” era.

      1. What the fuck are you people whining about?

        January 6 was a violent attempt to overturn the presidential election.

        What do you think your point is? I’m fascinatingly curious.

        1. Why would anyone find it “fascinating” that you’re curious about stupid shit?

        2. Keep believing in fairy tales to justify your march to authoritarianism Tony.

          1. It’s a Long March, but Tony has already arrived at authoritarianism.

  4. The court being confused about what violence is, especially after summer of 2020 is about as credible is Bill Clinton wondering what “is” means. It is an excuse.

    1. Mickey Rat is confused about the objection, which is not to the violent aspect, but to the collective punishment. You could have thousands who assembled peacefully all declared rioters because three scumbags started a fight.

      1. And this is the legal continuation of the absurd characterization of “mostly peaceful” protests while an arson fire blazes in the background.

        1. It was surreal hearing ads from BLM on Spotify telling you how peaceful they were, while they were burning the city down.

        2. Blackstone’s ratio: Better ten guilty escape justice than one innocent be punished unnecessarily. A thousand peaceful protesters who are just standing around chanting with signs do not deserve to go to jail because the 1001st protester was a jerk who set a fire.

          1. On night 27 of daily riots they do.

            Come to Florida and fuck around.

      2. You could have thousands who assembled peacefully all declared rioters because three scumbags started a fight.

        Not remotely the case. As the law is written an act to assist violence or disorderly conduct is necessary for guilt.

        When people must make up strawmen for their criticisms to be valid the logical position is that their criticisms are not valid.

      3. The violent aspect is requisite to the law applying.

    2. Yeah, I don’t see how the law infringes on peaceable assembly int he slightest. I’d agree it’s arguably redundant, but it goes to great lengths to say that as long as nobody gets hurt and shit doesn’t get smashed, the law doesn’t apply. The groups contesting it are pretty much insisting that they have a constitutionally-protected right to hurt people an break shit.

    3. SCOTUS Justice Kavanaugh unleashed this mess around the question, “what does violent mean”? He sided with the liberals where a lapsed green card holder was to be deported with a record of two burglary convictions. Kavanaugh said that, paraphasing, a person wouldn’t necessarily know that burglary was “violent” enough to get deported for a “violent crime”. Kavanaugh said that burglary might not be a violent crime. His reasoning just supports the Lawyerly State and further erodes common sense and justice.

  5. So certain groups are entitled to riot. That shits going to end well.

    1. Not at all what the ruling said, but please continue to panic about black people existing.

      1. Did you even read the article, fucknut?

      2. But do go on about the jan 6th insurrection for us. Just have cops start shooting right?

        1. That wasn’t a protest, that was an insurrection. Not even the same thing.

          1. Your ignorance is strong.

      3. Well, upthread tony seems pretty disgusted that trump supporters exist. But that’s different cuz it ain’t on account of race.

        Wait…… actually…..

      4. Personally I’m stunned a left winger claims all actions they oppose including opposing violence are racist. It’s such a departure from their typically reasoned political positions.

  6. This is all you need to know. The left liberaltarians that took over encourage mass civil disobedience in the form of riots and looting.

    Gosh it’s a wonder why you all never win elections

    1. But only if it serves the ruling establishment’s goals.
      Left libertarians are so very obedient.

  7. Florida Gov. Ron DeSantis countered that there had been no such chilling effect—why, just look at how black residents were out protesting on June 19 this past summer, they said, pointing to a flyer that billed itself as a “Juneteenth Black Joy Celebration” at a community park in West Palm Beach.

    Wingnut.com says that a joyful celebration of emancipation is EXACTLY LIKE the violent Jan 6 assault on the US Capitol.

    1. Who can ever forget the Blitzkrieg of the boomers.

  8. Florida is a “Stand your ground” state. So a shop owner can address looting already.

    1. ^This is a decent legal argument.

  9. “following racial justice protests last summer”

    that killed 24 people and did $2 billion in damages. Fuck right off, Reason.

    Next, “The Libertarian Case for Enforcing Socialism by Street Violence”

    Fuck. Right. Off.

    1. Yeah, but did any of them sit in pelosi’s chair?

    2. She is also against arresting the actual perpetrators of the violence of you remember her hysteria over unmarked police vans last year.

      1. It’s unreasonable for violent marxists or their media apologists to have to abide by any restrictions. They have human rights too.

    3. 24 lives and $2 billion in damages… those numbers need to double every year until law enforcement is reigned in. Shithead

      1. Not $2B in damages.

        $2B in INSURED damage.

        The actual cost was far higher.

  10. Ah, of course, the First Amendment now protections every form of violent act and outlaws peaceable assembly.

    Secession, separation, and self-determination.

  11. Republicans for freedom. Sometimes.

  12. On February 16, 2012, President Barack Obama nominated Walker to serve as District Judge for the United States District Court for the Northern District of Florida.

    This tells you everything you need to know about this ruling. Lefty shitbags cannot change.

    1. Yup. His ruling was basically “it hurts leftists, so its not allowed”.

      1. I thought it strange that the ruling is basically “this law has disproportionate effect because black people can’t protest peacefully”. Seemed a bit racist to me, but if he was nominated by The Legthrillbringer, he must know what he’s talking about.

        1. It is a bit racist, but it is also a bit true, like all racism.

  13. Its better to just shoot the protestors over a vague theory of self defense like they do in D.C.

    1. You be a member of the club before you shoot anyone.

    2. There’s nothing vague about a mass of people beating down the doors to the Senate chamber in an attempt to violently overthrow the election.

      1. You’d think that if that was their intent they might have thrown a fire extinguisher or something. Or, ya know, brought some guns. They clearly didn’t expect the capitol police to be armed!

        JFC you are so programmed. Haha.

      2. There was a mass of people beating down the doors to the Senate during the Kavanaugh hearings. No shootings occurred.

        1. If something offends progressives, it should offend everyone. If it terrifies them, amuses them, inspires them, the same. So, the events of 1/6 were a terrifying insurrection, but months of violence and destruction and BLM activists threatening to burn the country down if Biden lost the election were fine, even inspiring. Joking about, I don’t know, aborting fetuses, is funny, but joking about gender woo is not. Progressives feelings determine their reactions to events, and only their feelings matter.

      3. in an attempt to violently overthrow the election.

        Tony’s fantasy life remains robust.

      4. There is nothing vague about that. Hypothetically since that has never occurred.

      5. Oh shut up.

  14. “vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of,”

    So I just skimmed the article; was this about Facebook or Twitter?

    1. It’s Reason. Facebook would be too ‘in depth’.

  15. The plaintiffs in this case—including the Dream Defenders, Black Lives Matter Alliance Broward, the Florida State Conference of the NAACP Branches, and several other groups—say this new definition could criminalize not just people acting violently but anyone who shows up at a protest or rally where violence happens to break out.

    Why repeat this comment without pointing out it is obviously false? The key element is here: “acting with a common intent to assist each other in violent and disorderly conduct”. So any use of this law would require evidence showing they intentionally acted to support violence or disorderly conduct.

    So a successful prosecution would have to show a reasonable expectation of v/dc as well as some action furthering that effort. Their efforts to pretend the anodyne could be charged are insane as well. For example the judge apparently asked (stupidly) “Would holding a sign be enough?”. No, but using that sign to prevent identification (by intentionally blocking cell phones) or apprehension of someone committing violence (by interposing themselves between police and their targets) would be. Why are we pretending this is hard?

    Compare this alleged “vagueness” to Title IX which says in its entirety:

    “No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

    Left wingers pretend this statement mandates a preponderance of the evidence standard, precludes the accused from having a lawyer present, and precludes the accused from questioning the accuser among numerous other stupidities. Note how the obvious and reasonable distinctions in the riot law are claimed “vague” and the insane, impossible to support requirements in Title IX are accepted. I’m sure it’s just a coincidence left wing supported rules are subjected to an entirely difference standard of vagueness than laws the left opposes.

    It’s a shame Reason writers fall so easily into propaganda mode whenever it suits their desire to support left wingers.

    1. You don’t fall for propaganda you wholeheartedly believe in. The writers here are closer to the violent marxists they defend than libertarians.

    2. Actually, you are wrong.

      “commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct,”

      It does *not* say you have to be one of the three or more persons acting with common intent. As long as the event *involved* three such persons, and you were some other person who participated in the event, the law applies.

      Also, violent and disorderly conduct were already illegal under Florida law. Conspiracy to engage in violence was also already illegal. So why did they pass the new law? The whole point of the law was to be able to charge people who could *not* be proven to have been violent or disorderly.

      Under this definition, if three people on January 6 engaged in disorderly conduct, then all 10000 people present were guilty of riot.

      1. “……violence was also already illegal. So why did they pass the new law?”

        Tell ya what, let’s scrap this, and all the hate crime laws and call it even.

      2. Actually, you are wrong.

        In your own comment you note the person must have “a common intent to assist each other in violent and disorderly conduct,”.

        Being present does not indicate a common intent to assist each other in violent and disorderly conduct. To be guilty one must act in some way to indicate this, such as by protecting those engaged in violence from arrest or identification.

        The whole point of the law was to be able to charge people who could *not* be proven to have been violent or disorderly.

        This is correct. They want to be clear that helping people engage in violence is illegal, not just engaging in it directly.

        then all 10000 people present were guilty of riot.

        Again, only those whose actions indicate intent of violence or disorderly conduct.

      3. What do you think “common intent to assist” in your version of english?

    3. Why not make things simple and list the ways you want the government to restrict people’s freedom.

      1. I support government restrictions on people’s freedom to murder and assault as well. The horror!

        1. Restrict the governments ability to restrict freedom! That’s fascism!

      2. I’d prefer the lack of freedom for others to burn down my property.

        I thought property rights were big things for libertarians.

  16. Walker is a hack and the Democrats’ hatchet man in Tallahassee. They just forum shop their cases to him. He doesn’t “agree” with the Democrat plaintiffs so much as regurgitate whatever they put in front of him.

  17. “Evidence they provided to the court establishes “that their members have engaged in self-censoring for fear of the challenged statute’s enforcement against them,” noted Walker. “The chill is evidenced by the unwillingness of their members to turn out at protest events in the weeks following HB1’s enactment, the fact that some of the Plaintiffs have chosen to modify their activities to mitigate any threat of arrest at events, and the fact that at least one Plaintiff has ceased protest activities altogether.”

    Um … and this is somehow a BAD THING?

  18. I find it odd the liberal judges don’t care about the Constitution when Democrats pass unconstitutional laws, but do when Republicans pass unconstitutional laws. Seem politics, not the Constitution now is the deciding factor in the constitutionality of laws.

    1. When Republicans pass *supposedly* unconstitutional laws. Again, as long as the assembly is peaceful, the law doesn’t even have a whiff of applying.

  19. “There’s a lot going on in this law—not all of it terrible—but there are many troubling components,” wrote Reason’s Scott Shackford back in April. “There is hardly a place in America where the penalties for crimes are too small, and Florida is no exception. We don’t need to increase the penalties for existing crimes just because they take place during riots.”

    Dear Mr. Shackford- What do you think about so-called “Hate Crimes” with enhanced penalties for speech and/or thoughts.

  20. I think the real scandal is the fact that Yale and Harvard graduate, with cum laudes no less, ball-fondling simpletons like Ron DeSantis.

    If he’s actually smart, then he’s a sociopath of the highest order. Surely that must be the case.

    1. [pedantry]

      with cum laudes is redundant. Cum means “with.” And Yale gave him magna cum laude, so pluralizing the Latin was clumsy. “Yale and Harvard graduate, with honors…” might have been the way to go.

      [/p]

      1. Yeah well I was going with the double entendre there.

        Sorry, cum the double entendre.

  21. Only private companies are allowed to do that.

  22. I ha the impression a lot of this law was aimed at what I will term close the street protests and allowed vehicles to have first dibs on driving on a public road even if it was filled with protestors.

    In many places most all of these protestors would be guilty of jay walking. While a misdemeanor it would be interesting if all the protestors were charged with jay walking and punished to the full extent of the law. Even as a small child my Mother insisted I could not play in the street; still good advice as an adult.

  23. The judge is lying and is conflating pillage, arson, and terrorism with peaceful protest. Gov. deSantis should disobey, and should call out the National Guard, if necessary, to enforce his order. If he does not then the victims themselves will need to start shooting.

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