The Ninth Circuit Court of Appeals overturned a Central District federal court’s decision to dismiss charges against alleged members of a white supremacist group whose defense was that the definition of riot under the Anti-Riot Act is unconstitutional and overly broad because it prohibits advocacy that does not incite an imminent riot.
“The Act is not facially overbroad,” wrote Circuit Judge Richard A. Paez and District Judge Jon S. Tigar in the March 4 opinion. “Rather, the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot, unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct.”
At the core of the case is the 2018 arrest and indictment of four Rise Above Movement (RAM) members who allegedly organized and incited violent riots statewide.
“This is an interesting ruling because it requires us to think carefully about language, to open our dictionaries and compare the range of meanings associated with specific words,” said Nicole Clark, a California attorney and founder of judicial analytics platform Trellis Law Intelligence. “The ruling, for example, forces us to think about what it means to urge, to organize, to encourage and promote.”
Under the Anti-Riot Act, it is illegal to use interstate commerce or communications with intent to incite a riot, organize, promote, encourage, participate in, or carry on a riot, to commit any act of violence in furtherance of a riot or to aid and abet in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot, according to media reports.
“It is important to remember that the Anti-Riot Act passed as a rider to the Civil Rights Act of 1968, right after the assassination of Dr. Martin Luther King, Jr. sparked riots across the United States,” Clark said.
The first case prosecuted under the Anti-Riot Act was the Chicago Seven in which seven people were charged for protesting against the Vietnam War in Chicago during the 1968 Democratic National convention.
“Critics say the text is vague, that it is difficult to read and difficult to interpret,” Clark told the Southern California Record. “In particular, the Anti-Riot Act has become notorious for the breadth of its coverage, criminalizing speech that would otherwise be protected. With this case, we are starting to see the courts address these critiques.”
Clark added that the opinion raises questions about how the courts have interpreted the scope of the Anti-Riot Act when it has been applied to the activities of white nationalists compared to those of the Black Panther Party members or anti-war activists.
Circuit Judge Ferdinand F. Fernandez dissented.
“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," he wrote. "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.”