The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From U.S. v. Phomma, decided Wednesday by Judge Robert E. Jones (D. Ore.):
The indictment charges Defendant with violating § 231(a)(3), which is part of the Civil Obedience Act of 1968…. Defendant states in his Motion to Dismiss that on August 26, 2020, he "was involved in the protest against racial injustice at the Immigration and Customs Enforcement (ICE) building located at 4310 S.W. Macadam Avenue, Portland." … According to the government, on the night of August 26, Defendant "sprayed several Portland Police Officers with bear spray. The officers were wearing gas masks, but one officer noted that his neck and arms 'started to burn.' When he and the others removed their gas masks, their faces felt the same burning sensation." The government states that "protesters filled the street, making passage by cars or delivery vehicles impossible."…
Section 231(a)(3) provides,
Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or performance of any federally protected function … [s]hall be fined under this title or imprisoned not more than five years, or both.
The statute defines "civil disorder" as "any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual." …
The First Amendment's "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." The court may strike down a statute as overbroad under the First Amendment "if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." "Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)." …
The statute applies to persons who commit or attempt to commit "any act to obstruct, impede, or interfere" with law enforcement or firefighters. The words "any act" imply that the statute is directed towards conduct rather than speech. As the court in Howard explained,
The language of § 231 targets conduct, specifically conduct that obstructs, impedes, or interferes with law enforcement officers lawfully engaged in the lawful performance of their duties during a civil disorder that negatively impacts interstate commerce. The fact that there could be a circumstance in which the government could charge someone whose act constituted a form of speech or expression does not render § 231(a)(3) unconstitutional on its face. The case law makes clear that to violate the First Amendment on its face, a statute must reach "a substantial amount of constitutional protected conduct." …
I note that the recent district court decisions cited here concern allegations of violent conduct. For example, Defendant here allegedly sprayed police officers with bear spray; in Wood, the defendant allegedly threw brick that shattered the back window of a police vehicle; in Pugh, the defendant allegedly used a baseball bat to break out the window of a police cruiser; and in Howard, the defendant allegedly threw an object at a police officer, hitting the officer in the head and knocking him unconscious. I conclude that the statute is targeted primarily if not exclusively at conduct, whether violent or not, rather than speech.
Defendant has not cited any prosecutions under § 231(a)(3) that involved protected speech, but rather provides only hypothetical situations. As noted, when a defendant presents a facial challenge to a statute as overbroad, the defendant must show that the statute reaches a "substantial amount of constitutionally protected conduct." The Supreme Court has explained that "[t]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge." Here, Defendant has failed to make the required showing to strike down § 231(a)(3) as overbroad….
Defendant contends that § 231(a)(3) should be subject to strict scrutiny because Congress enacted the statute with the intent to suppress the viewpoints of civil rights leaders. Defendant has submitted legislative history that includes senators' statements castigating African-American civil rights leaders by name, including Martin Luther King, Jr., Stokely Carmichael, and H. Rap Brown.
However, I find that the statute itself is content-neutral on its face. Over the past fifty years, the statute has been applied to civil disorders across the political spectrum, including the recent riots on January 6, 2021 in Washington, D.C. Whatever the original intentions of the legislators who passed § 231(a)(3) in 1968, the statute on its face does not regulate speech based on content….
A statute that is content-neutral on its face, such as the statute at issue here, may still be subject to strict scrutiny if "the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration." Here, Defendant has not shown that § 231(a)(3) targets speech, much less specific messages. The history of the statute, as mentioned above, shows that it has been applied to defendants across the political spectrum….