Federal appeals court finds parts of anti-riot law violate free speech

A federal appeals court on Monday upheld the convictions of two members of a white supremacist group who admitted they punched and kicked counter-demonstrators during the 2017 “Unite the Right” rally in Charlottesville, Virginia. However, the panel found that part of an anti-riot law used to prosecute them “treads too far upon constitutionally protected speech.”

In its ruling, a three-judge panel of the Richmond, Virginia-based 4th Circuit Court of Appeals rejected a challenge to the constitutionality of the entire federal Anti-Riot Act on its face. But the court said the law violates the free speech clause of the First Amendment in some respects. The court invalidated parts of the law that encompass speech tending to “encourage” or “promote” a riot, as well as speech “urging” others to riot or involving mere advocacy of violence.

Congress passed the law as a rider to the Civil Rights Act of 1968 during an era of social unrest, a time the 4th Circuit noted was “not unlike our own,” a reference to months of nationwide protests over racial injustice following the May 25 police killing of George Floyd in Minneapolis.

The court said the law wasn’t challenged for decades until three other members of the Rise Above Movement won a ruling last year from a federal judge in California who found the law is unconstitutional and dismissed charges against the men. That ruling is currently being appealed by prosecutors to the 9th U.S. Circuit Court of Appeals.

The 4th Circuit’s ruling is the first time a federal appellate court has found parts of the law unconstitutionally overbroad. While the court was critical of those portions, it left most of the law intact.

The ruling came in an appeal by Benjamin Drake Daley of Redondo Beach, California, and Michael Paul Miselis of Lawndale, California, two members of the Rise Above Movement, a militant white supremacist group known for having members who train in mixed martial arts street-fighting techniques.

Daley and Miselis pleaded guilty in 2019 to conspiracy to riot in connection with several 2017 rallies, including a torch-lit march at the University of Virginia and the Unite the Right rally in Charlottesville and rallies in Huntington Beach and Berkeley, California.

As part of their guilty pleas, the men admitted their acts of violence were not in self-defense. Daley was sentenced to a little more than three years in prison, while Miselis received more than two years.

Their attorneys argued before the 4th Circuit that the federal Anti-Riot Act is unconstitutional because it is overbroad and vague, and infringes on First Amendment activities.

“To be sure, the Anti-Riot Act has a plainly legitimate sweep. The statute validly proscribes not only efforts to engage in such unprotected speech as inciting, instigating, and organizing a riot, but also such unprotected conduct as participating in, carrying on, and committing acts of violence in furtherance of a riot, as well as aiding and abetting any person engaged in such conduct,” Judge Albert Diaz wrote in the 3-0 opinion.

“Yet, the Anti-Riot Act nonetheless sweeps up a substantial amount of protected advocacy,” Diaz wrote.

The court said it upheld the convictions of Miselis and Daley because their conduct falls squarely under conduct prohibited by the law, including committing acts of violence in furtherance of a riot and participating in a riot.

Raymond Tarlton, an attorney for Miselis, and assistant federal public defender Lisa Lorish, who represents Daley, said the 4th Circuit’s ruling “has particular significance” because the Department of Justice has used the law to prosecute some demonstrators who have participated in protests since Floyd’s killing.

“We are nonetheless disappointed that the Court decided to sever only parts of the statute instead of striking it down in its entirety,” the attorneys said in an email. They declined to say whether they will appeal the ruling, but said they are “evaluating potential next steps.”

A spokesman for U.S. Attorney Thomas Cullen declined to comment.

Hundreds of white nationalists descended on Charlottesville in August 2017 in part to protest the planned removal of a statue of Confederate Gen. Robert E. Lee.

Violence prompted authorities to force the rally to disband. Afterward, a woman was killed and dozens were injured when a car driven by a self-avowed white supremacist plowed into a crowd of peaceful counter-protesters.

President Donald Trump sparked a public outcry after he blamed both sides for the violence.

A jury convicted James Fields Jr. of state murder and wounding charges and he later pleaded guilty to federal hate crime charges.