The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday's Fourth Circuit decision in U.S. v. Miselis, written by Judge Robert King and joined by Judges Albert Diaz and Allison Jones Rushing considered a facial First Amendment challenge to the Anti-Riot Act:
Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified [above] … [s]hall be fined … or imprisoned not more than five years ….
"[T]o incite a riot", or "to organize, promote, encourage, participate in, or carry on a riot", includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.
"Riot" is defined as a public disturbance involving "an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual," or involving threats of such violence.
The court held (to oversimplify):
[A.] The "incite" prohibition (item 1) constitutionally applies when people travel or communicate with the intent to engage in constitutionally unprotected incitement, defined by Brandenburg v. Ohio (1969) to mean advocacy intended to and likely to promote an imminent riot. This covers things such as traveling to engage in actual incitement (e.g., going to some place with the plan to egg on a violent crowd), whether the incitement takes place or the plan is foiled before such incitement (in which case the behavior is constitutionally unprotected attempted incitement). The "instigating" provision is likewise valid, as a synonym for inciting.
[B.] The "organize" prohibition in item 2 is constitutional because it involves not just abstract advocacy but concrete orchestrating of criminal rioting. The best way of understanding this ruling, I think, is by analogy to U.S. v. Williams (2008), which held that specific solicitation of crime (as opposed to abstract advocacy) is constitutionally unprotected as speech integral to the underlying criminal conduct.
[C.] The "aid or abet" prohibition (item 4) is constitutional because it likewise involves not just abstract advocacy but concrete assistance (even if the assistance comes through speech) to criminal rioters. Here too U.S. v. Williams (2008) would be a good analogy. (The "commit any act of violence" provision wasn't challenged, but that's clearly constitutional).
But the court held other parts of the statute were unconstitutional:
[i.] The "promote" and "encourage" prohibition (item 2) and the "urging" provision are unconstitutional because they can extend to abstract advocacy of crime.
[ii.] Likewise, the "not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts" provision suggests that advocacy of violence and assertion of the rightness of violence are prohibited, and that too is unconstitutional.
[iii.] The court also held that the words "promote," "encourage," "urging or," and "not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts" should therefore be in effect deleted from the statute—something courts often do, under the name of "severing" unconstitutional provisions—and the remainder of the statute would be upheld.
The analysis generally seems right to me, though there is always a risk to criminalizing otherwise innocent behavior (such as travel or communication) because of the speaker's inferred purpose.
The decision came in the prosecution of white supremacists, but of course the same reasoning (both as to the partial validity of the statute and the partial invalidity) would equally apply to people connected to any other kinds of riots, whether antifa or anti-globalization or anything else.