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.
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."
