The Volokh Conspiracy
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Prosecution for Incitement to Riot
"Be there by 10:30, lace your shoes, wear masks and gloves. Bring hammers bricks whatever you want."
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.
