The Volokh Conspiracy
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Would-Be Peaceful Demonstrators Lack Standing to Challenge Florida's Anti-Riot Act
From Judge Paul G. Byron's opinion today in Legacy Entertainment & Arts Foundation v. Mina (M.D. Fla.):
On April 19, 2021, Governor DeSantis signed the "Combatting Public Disorder Act" … into law …. The Act amended the Florida Statutes and, in pertinent part, codified definitions for rioting, aggravated rioting, and inciting a riot:
[2] A person 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, resulting in: (a) Injury to another person; (b) Damage to property; or (c) Imminent danger of injury to another person or damage to property…
[3] A person commits aggravated rioting if, in the course of committing a riot, he or she: (a) Participates with 25 or more other persons; (b) Causes great bodily harm to a person not participating in the riot; (c) Causes property damage in excess of $5,000; (d) Displays, uses, threatens to use, or attempts to use a deadly weapon; or (e) By force, or threat of force, endangers the safe movement of a vehicle traveling on a public street, highway, or road…
[4] A person commits inciting a riot if he or she willfully incites another person to participate in a riot, resulting in a riot or imminent danger of a riot…
[7] This section does not prohibit constitutionally protected activity such as a peaceful protest.
Plaintiffs are three nonprofit organizations and an individual who planned to hold "peaceful demonstrations honoring George Floyd and other victims of racism and police brutality." {Plaintiffs repeatedly emphasize the peaceful nature of their demonstrations throughout the Amended Complaint.} … Plaintiffs argue that the Act targets protected speech under the First Amendment, employs vague and overbroad definitions, and retaliates against protesters through excessive bail and fines. Plaintiffs further allege that they fear prosecution and imposition of civil liability under the Act—notwithstanding their intent to protest peacefully….
Plaintiffs fail to satisfy the three-part standard [for standing to mount a pre-enforcement challenge] laid out in Susan B. Anthony List v. Driehaus. In particular, they do not allege any intended conduct that is "arguably proscribed" by the Act. According to Plaintiffs, they engage in peaceful protests and counsel others to do the same. They make no argument that this conduct is proscribed. On the contrary, the Statute explicitly allows for peaceful protests. ("This section does not prohibit constitutionally protected activity such as a peaceful protest.").
Notwithstanding Plaintiffs' repeated emphasis that they have "no intent to incite a riot or promote force" they argue that the Act "threatens to impose liability … regardless of their intent to incite violence." This is not a reasonable interpretation of the Statute. Section 870.01(2) explains that "[a] person 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." Likewise, "[a] person commits inciting a riot if he or she willfully incites another person to participate in a riot, resulting in a riot or imminent danger of a riot."
Although "[n]othing in [the Supreme Court's] decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law," he must identify conduct that could at least arguably violate the law. In this case, Plaintiffs' persistent disavowal of an intent to cause violence prevents them from falling within the ambit of a Statute with an express intent requirement. Therefore, they have not identified any protected conduct or speech that is arguably proscribed by the Statute.
{The Susan B. Anthony List petitioners also disavowed an intent to violate the statute, but that case is distinguishable. The petitioners insisted that their anti-abortion statements were truthful, but the Court explained that their subjective beliefs were irrelevant to whether the statements were arguably untrue—and therefore arguably proscribed by the statute. This line of reasoning is inapposite here. Plaintiffs' subjective intent is the whole ball of wax. Conduct is either intentional or it is not.}
The flaw in Plaintiffs' reasoning is subtle—they do not argue that the Statute itself improperly penalizes protected speech, but that the Statute will be improperly applied to penalize protected speech. They argue that the Statute "increases opportunities for selective enforcement and selective prosecution based on hostility toward unpopular views, like Black Lives Matter." The Court agrees that this outcome is possible—if not probable. But the potential for viewpoint-based application of a facially neutral law cannot be litigated ex ante. Selective enforcement against disfavored speakers "would of course be unconstitutional, but [the Supreme Court] think[s] that this abuse must be dealt with if and when a pattern of unlawful favoritism appears."
In sum, the Amended Complaint does not allege a credible threat of prosecution for "encouraging and advising peaceful demonstrations." Therefore, Plaintiffs have not alleged an objectively reasonable fear that the Statute will be enforced against them. Their subjective chill is "insufficient to sustain the burden that Article III imposes."
As a final note, the Court pauses to emphasize that its holding is limited to the extremely narrow issue of whether these particular Plaintiffs have standing to sue in this particular case. The Statute could very well be applied in an unconstitutional manner and have an unconstitutional chilling effect on speech. Indeed, it seems clear to the Court that Defendants would consider the suppression of anti-police brutality protests—violent or otherwise—a feature, not a bug. {Governor DeSantis explicitly characterized the Statute as "pro-law enforcement." Paul LeBlanc, Florida Governor Signs Controversial 'Pro-Law Enforcement' Law Cracking Down on Riots, CNN (Apr. 19, 2021), https://www.cnn.com/2021/04/19/politics/ron-desantis- signs-combating-public-disorder-act/index.html.} {On the other hand, it is also possible that the Statute's passage was merely political theater with no practical consequences beyond virtue-signaling to Defendants' base voters. As Plaintiffs note, "the conduct barred by the [Statute] is already proscribed by laws currently on the books of the [S]tate of Florida."}
Nonetheless, federal courts do not sit as super-legislatures with the power to invalidate reckless and partisan policies. Rather, we resolve cases or controversies, and Plaintiffs here have not presented one.
