Free Speech

Anti-Riot Act Partly Upheld, Partly Struck Down

The Ninth Circuit decides a case involving "Rise Above Movement" white supremacists who participated in riots in California.

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From U.S. v. Rundo, decided yesterday by the Ninth Circuit (Judges Richard Paez and Ferdinand F. Fernandez, and District Judge Jon S. Tigar):

"[T]he constitutional guarantees of free speech and free press" protect "advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio. At its core, the [Anti-Riot Act criminalizes using interstate commerce or communications] "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 ….

["Riot" is defined as:] a public disturbance involving (1) 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 (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

"[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.

(1) Instigate: "Instigate" means "to goad or urge forward : set on : PROVOKE, INCITE." Likewise, "incite" means "to move to a course of action : stir up : spur on : urge on." Like the Fourth Circuit and the Seventh Circuit, we conclude that speech that "incites" or "instigates" a riot satisfies Brandenburg's imminence requirement.

(2) Urging: Urge "means simply to 'encourage,' 'advocate,' 'recommend,' or 'advise … earnestly and with persistence.'" We agree with the Fourth Circuit that, "because earnestness and persistence don't suffice to transform such forms of protected advocacy into speech that is likely to produce imminent lawless action, Brandenburg renders the purpose of 'urging' others to riot overbroad."

(3) Organize: The verb "organize" is similarly overbroad. Like "urge," "organize" is not susceptible to a limiting construction that brings it within Brandenburg's strictures….

(4) Encourage and promote: Moreover, like the Fourth Circuit, we conclude that the First Amendment protects speech tending to "encourage" or "promote" a riot. Black's Law Dictionary defines "encourage" as meaning "[t]o instigate; to incite to action; to embolden; to help" and cross-references aiding and abetting. The Oxford English Dictionary's definition of "encourage" is similar but also includes "to recommend, advise." The latter definition fails Brandenburg's imminence requirement. The same is true for "promote," which is synonymous with "encourage."

(5) Effect of § 2102(b) limitations: Additionally, § 2102(b) states that the terms in question "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." The Defendants argue that the double negative cancels itself out and that the Act therefore proscribes mere "advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts." We agree. The First Amendment protects that kind of advocacy.

We recognize that the Seventh Circuit [in a 1972 decision] construed the exclusion to merely "forestall any claim … [that] advocacy and assertion constitute mere advocacy of ideas or expression of belief excluded under" § 2102(b) in the context of "a truly inciting, action-propelling speech [that] include[d] advocacy of acts of violence and assertion of the rightness of such acts." We do not believe that the words of the Act will reasonably bear that construction.

(6) Aid or abet: The Defendants assert that "to aid or abet any person in inciting … a riot" (from subparagraph 2101(a)(4)) is subject to the same definition as "to incite a riot" (from subparagraph 2101(a)(1)). Thus, for the foregoing reasons, aiding or abetting inciting a riot satisfies Brandenburg's imminence requirement.

In sum, subparagraphs (1), (2), and (4) of § 2101(a) do not violate the First Amendment except insofar as subparagraph (2) prohibits speech tending to "organize," "promote," or "encourage" a riot, and § 2102(b) expands the prohibition to "urging" a riot and to mere advocacy….

Defendants assert that the very definition of a "riot" is unconstitutional. We do not agree.

A "riot" requires either one or more "acts of violence" or one or more "threats" to commit one or more acts of violence. The completed acts of violence (or the threatened acts of violence) must "constitute a clear and present danger of, or … result in, damage or injury to the property … or to the person of any other individual."

Acts of violence are not protected under the First Amendment. Nor are "true threats," which involve subjective intent to threaten. "True threats" are not limited to bodily harm only but also include property damage.

"[W]e do not hesitate to construe" a statute punishing threats "to require … intent" to threaten. By requiring proof of "intent" and proof that the overt act was committed "for [the] purpose" of a riot, which also indicates subjective intent, Congress limited the "threats" part of the definition of a riot to "true threats." Thus, a "riot," as defined in the Act, is not protected under the First Amendment….

[With the unconstitutional portions] severed, § 2101(a) [criminalizes interstate travel or communication] "with intent"

(1) to incite a riot; or

(2) to 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 ….

As used in this chapter, the term "to incite a riot", or "to participate in, or carry on a riot", includes, but is not limited to, 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.

With the above construction and severance, the Act is not facially overbroad. Rather, the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot [and thus constitutes incitement under Brandenburg v. Ohio], unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct….

[T]he freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society. Nevertheless, it would be cavalier to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them. Of course, the government cannot act to avert a perceived danger too soon, but it can act before it is too late. In short, a balance must be struck. Brandenburg struck that balance, and the Act (after the elisions) adheres to the result….

Judge Fernandez dissented as to the striking of the "organizing" and "urging" language; he would have read urging as limited to incitement of imminent riot, and thus as consistent with Brandenburg, and he added, as to "organizing":

In the context of an event or activity, like a riot, "organize" means "to unify into a coordinated functioning whole : put in readiness for coherent or cooperative action," or "to arrange by systematic planning and coordination of individual effort." Simply put, "organize" means "[t]o arrange (personally); to take responsibility for providing (something); to 'fix up.'" I agree with the Fourth Circuit that "speech tending to organize a riot serves not to persuade others to engage in a hypothetical riot, but rather to facilitate the occurrence of a riot that has already begun to take shape," indicating imminence.

It is far from mere speech. It is the very purposeful, physical, and concrete action of structuring people into an intentionally physically violent force, which is at least on the brink of carrying out its mission. Although it might be reasonable to organize some events into the far future, as I see it, organizing a riot does not reasonably lend itself to that interpretation.