Free Speech

Prosecution for Incitement to Riot

"Be there by 10:30, lace your shoes, wear masks and gloves.  Bring hammers bricks whatever you want."

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From a Justice Department press release yesterday:

[A] federal criminal complaint [has been filed] against Dominic Brown, 18, of Heiskell, charging him with inciting a riot and civil disorder….

According to allegations made in the June 4 complaint, on May 30, 2020, Brown posted messages on his Snapchat account that were intended to incite and organize a riot at the West Town Mall in Knoxville.  In one post, Brown stated, "we are not each other's enemy only enemy is 12;" the number "12" is slang term that means law enforcement officers.  In another post, Brown stated the following regarding a published news story that law enforcement officers were taking threats to West Town Mall seriously:  "ok bet lol. [expletive] they ain stopping [expletive] haha I done got felonies and y'all ain stop [expletive] [expletive] outta here."  Brown also made two additional posts to his Snapchat account which contained images depicting maps of the interior of West Town Mall and made an additional post which stated in part, "If we get 300 people we can raid the mall and everything in there…."

According to the complaint, Brown also posted instructions to others and updates of his own preparations for the riot via his Snapchat account.  In one post, Brown instructed, "be there by 10:30, lace your shoes, wear masks and gloves.  Bring hammers bricks whatever you want."  In another post, Brown stated, "clique up before all y'all get active so we all show up at once [expletive] the waiting a hour on slow pokes clear your agenda if you comin. 10:30."

The complaint also alleges that, on May 31, Brown was observed by law enforcement officers participating in a civil disorder in the downtown area of Market Square.  Law enforcement officers observed Brown picking up a trash can lid filled with an unknown liquid and striking a law enforcement officer in the head while the officer was seated in a police vehicle.  Brown attempted to flee, but was ultimately arrested by Knoxville police officers.

"The United States Attorney's Office supports the right of American citizens to gather in peaceful protest," said U.S. Attorney Overbey.  "However, we will uphold the rule of law in this community and will take swift action against those who seek to hijack the circumstances surrounding the death of George Floyd to engage in violent criminal activity."

"The FBI's mission is to protect the American people and uphold the Constitution.  That includes the rights of individuals to peacefully exercise their First Amendment freedoms. Violence, the threat of violence, and destruction of property jeopardizes the rights and safety of all citizens, including peaceful demonstrators.  We will remain steadfast in our mission to protect the American people from those whose intent is to sow discord in our communities," said FBI Special-Agent-in-Charge Joseph E. Carrico….

The charges in the complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty.

Here's the FBI affidavit in the case (which is quoted in the press release). If the facts are as alleged, I think this speech would indeed fit within the narrow incitement exception (for speech intended to and likely to incite imminent criminal conduct) and possibly within the solicitation exception. Generally advocating or praising rioting or revolution is usually constitutionally protected; but urging people to engage in specific crimes against specific victims in the very near future is generally not protected.

NEXT: Church Closures and Judicial Deference

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  1. Here is something similar that didn’t meet the Volokh Conspiracy’s predictable content curation standards (which resemble those of Fox News).

    1. Since when is Fox News anti-Trump?

      1. Since he came down the escalator to announce his candidacy. Sure, a few opinion commentators are pro-Trump, such as Hannity.

        I think it’s funny that most leftists don’t get that Fox News is pretty much controlled opposition.

      2. “Since when is Fox News anti-Trump?”

        August 28, 2019>

    2. What about… what about waaaaa about waaaaaahhhhhh waahhhh

      lmao

      1. Laughing like this, Sam?

        1. If I were a very stable genius and I spent a long day at work trying to save America, that’s probably how I’d look too.

          1. What if you were a vainglorious, vulgar, reckless, bigoted, weakening boor who spent the day flying cross-country to speak at a less-than-half-full arena in a back-of-the-backwaters state (after boasting about one million ticket requests)?

            1. Then I’d probably be some dimwitted retard posting on a blog filled with his moral and intellectual betters while posing as a pretentious reverend.

              1. You are fortunate this blog’s alleged civility standards are a politically correct lie.

                1. I like it when you cry. It warms my heart.

    3. Here’s a story explaining the background a little more, for anyone who (like me) hadn’t seen it:

      https://www.foxnews.com/us/boogaloo-suspects-accused-trying-to-incite-violence-george-floyd-protest-las-vegas-feds-say

  2. Faith slightly restored. I was really thinking no was going to go down for this bull.

    1. There needs to be a whole lot more.

      1. Plenty of state prosecutions to slake your thirst for punishment.

        1. So, folks who incite riot and assault police should…not…be prosecuted?

          1. Not what I said.

            1. I thirst for justice, as should you.

              1. Luckily, your view of justice does not control much except your personal dissatisfaction.

  3. Sounds like a case which justifies prosecution.

    More generally, “Peaceable Assembly” laws are needed in every state. Those would define the constitutional right of peaceable assembly to privilege over ordinary laws a power for would-be assemblers to gather peaceably in public spaces (and not private spaces) at times and places the would-be assemblers prefer. Compared to current regulatory practice, that would give greater latitude to assemblers.

    Instead of the current use of restrictions which let authorities usurp the essence of the constitutional right—which is to choose a time and place to gather—restrictions should be authorized with an eye to limiting duration of assemblies according to reasonable defined principles—perhaps, for instance, to limit assemblies of protestors to the duration of events they protest.

    For all assemblies, peaceable assembly laws must further define carriage of weapons and use of body armor during assemblies as not peaceable, and prohibited. That change is critically needed to prevent the politics of assembly from devolving into contests of armed intimidation. Law enforcement officers would be empowered everywhere to turn away armed would-be assemblers, or to take whatever action was reasonably needed to prevent armed intimidation.

    Perhaps a federal law would make more sense than many laws differing from state to state. Protection of the right of peaceable assembly would seem fully to justify a federal law, but it might be wise to explicitly authorize state enforcement, while leaving federal enforcement optionally available.

    1. I don’t think any of this is necessary.

      What IS necessary is the ability to get a march permit on short notice. In other words, if people want to get one 6 hours before a march or something, they should be able to get one.

      You can’t simply say that any peaceable assembly on public streets is legal, because such a rule could effectively allow abortion protesters to block abortion clinics, unions to hold general strikes, etc. Permitting is necessary because the streets are ordinarily used for other legitimate purposes and people seeking ingress and egress have rights too.

      But it shouldn’t take that much time to approve a march.

      1. What makes you suppose peaceable assembly bars ingress and egress? If that is your concern, just add a requirement that to be peaceable, assembled people must give way to others conducting normal business. That would be a pretty good solution for the abortion clinic problem, don’t you think? Abortion protestors who do not give way to abortion clients are no longer peaceably assembled, and can legally be dispersed.

        Otherwise, your argument amounts to a general power for state and local governments to abrogate the right of assembly. I get that the status quo pretty much is that, and I am pushing back.

        And by the way, what is unconstitutional about a general strike?

        1. “assembled people must give way to others conducting normal business”

          So no blocking roads, marching on highways, etc.?

    2. For all assemblies, peaceable assembly laws must further define carriage of weapons and use of body armor during assemblies as not peaceable, and prohibited. That change is critically needed to prevent the politics of assembly from devolving into contests of armed intimidation. Law enforcement officers would be empowered everywhere to turn away armed would-be assemblers, or to take whatever action was reasonably needed to prevent armed intimidation.

      So basically Lathrop would be able to organize a mob in any place and thereby disarm all law abiding people in that place.

      1. A peaceable assembly is not a mob. Intimidating with arms people who have peaceably assembled should be a crime, and one which law-abiding people would avoid committing.

        Your are defending conduct which makes peaceable assembly laws necessary, to prevent the practical extinction of a constitutional right. Stop bringing guns to protests, with which to confront adversaries, and no such laws would be needed.

    3. Spoken like a true…progressive oppressor. You related to Beria?

      Law enforcement officers would be empowered everywhere to turn away armed would-be assemblers, or to take whatever action was reasonably needed to prevent armed intimidation.

  4. Assuming it’s all true, and he ends up convicted; I hope that he comes out of prison, 20 years from now, a more sober member of society. Very glad for the arrest and prosecution. Always nice when liberal and conservative people can come together to cheer a hero, or to hurl disgust at a worthless sack of crap. Enjoy your time in prison . . . plenty of time there for reflection and self-improvement.

    1. Some people are incorrigible. Let’s hope that regardless of what happens to him, he doesn’t hurt anyone.

      1. “Some people are incorrigible.”

        Agreed

    2. I doubt he will come out of prison after 20 years.
      I suspect he will find out in the first year what felons think of his actions.

  5. “For all assemblies, peaceable assembly laws must further define carriage of weapons and use of body armor during assemblies as not peaceable, and prohibited. That change is critically needed to prevent the politics of assembly from devolving into contests of armed intimidation. Law enforcement officers would be empowered everywhere to turn away armed would-be assemblers, or to take whatever action was reasonably needed to prevent armed intimidation.”

    Hoplophobe, you are. One may arm himself without intimidating others. There is that pesky 2nd Amendment, after all. Don’t you see the irony in curtailing the 2nd to support the 1st?

    1. Publius, I see no irony at all. They are on a level. They must give way, each to the other, with times and circumstances contributing to the balance.

      As for intimidation, the person armed at a political assembly will not speak with authority on whether his political adversary has been intimidated.

      1. For all assemblies, peaceable assembly laws must further define carriage of weapons and use of body armor during assemblies as not peaceable, and prohibited. That change is critically needed to prevent the politics of assembly from devolving into contests of armed intimidation.

        There have been many, many events involving armed protesters/demonstrators that have occurred in this country over the past couple of decades. Can you point to any of them that have devolved into “contests of armed intimidation”?

        1. Pretty much all of them. Problem is, the unarmed people, who are either conducting ordinary business, or who are peaceably assembled in opposition, always lose those contests.

          As an advocate for arms at assemblies, you have no standing to say who is or is not intimidated.

  6. I hope this guy gets the “jew kids want to play in the playground” or the “white people want to go to church” style hammer of justice.

    You know grind him into the dirt.

    1. I would have expected someone who has been getting stomped in the culture war for decades, and is destined to have more progress shoved down his throat by the liberal-libertarian alliance that shapes American progress against the wishes of conservatives, to be more a fan of mercy . . . but have it your way.

      1. Hey, not only rhetorically stomped, but physically stomped, beaten, robbed, and murdered!

        Classic Culture Wars.

  7. Sounds like a long list of facts that a jury should decide.

  8. I think these “activists” are really going to regret their social media meat of them proudly vandalizing public property and committing acts of violence. The indictments and charges are coming. And most of them are going to be completely warranted.

  9. Mr. Brown seems to have some kind of allergy to punctuation.

  10. “If we get 300 people we can raid the mall and everything in there….”

    According to the complaint, Brown also posted instructions to others and updates of his own preparations for the riot via his Snapchat account. In one post, Brown instructed, “be there by 10:30, lace your shoes, wear masks and gloves. Bring hammers bricks whatever you want.” In another post, Brown stated, “clique up before all y’all get active so we all show up at once [expletive] the waiting a hour on slow pokes clear your agenda if you comin. 10:30.”

    If these statements were specifically intended to cause people to meet and destroy property at the stated times, and were likely to cause people to do just that, then yes, this is the narrow sort of incitement that Brandenburg says can be punished.

  11. This does seem as though it justifies prosecution, but does “incitement” really apply when it takes place off-site and several hours before the riot takes place?

    I would think, and hope, some kind of preplanning crime, maybe “conspiracy” or “accessory before the fact” (with the underlying crimes being the planned burglaries, arson, and various kinds of assault) would fit better and be more likely to stick. And I would especially like to find the people who (1) delivered pallet loads of rocks and bricks to targeted neighborhoods, (2) bussed paid goons in to start things off, and (3) prearranged to bail out those arrested. Juries ought to be allowed to infer intent from obviously pre-informed actions such as those.

    In fact, I think RICO cases would be very appropriate here. Do these crimes meet the tests for that law to be used?

    1. The pallets turned out not to be real.

      Paid goons? Prove it. And no, anonymous craigslist ads don’t count; anyone can make those.

      There are bailout organizations that pay for the bail of protesters indiscriminately; hardly ‘prearranged.’

    2. And I would especially like to find the people who (1) delivered pallet loads of rocks and bricks to targeted neighborhoods, (2) bussed paid goons in to start things off, and (3) prearranged to bail out those arrested. Juries ought to be allowed to infer intent from obviously pre-informed actions such as those.

      Civil commitment proceedings ought to be used to discern mental illness in people who actually think any of those things happened.

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