Fourth Circuit Holds Anti-Riot Act Partially in Violation of First Amendment

By Joseph Fawbush, Esq. on September 01, 2020 | Last updated on August 10, 2021

Not since 1968 has America experienced the social upheaval currently enveloping the country. One of the events that triggered the current unrest was the infamous “Unite the Right" rally in Charlottesville, Virginia. Two white supremacists who attended that event were Michael Paul Miselis and Benjamin Drake Daley. The two racists sought out and engaged in violent behavior and were convicted of, among other things, violating the Anti-Riot Act.

The two challenged their conviction, claiming that the statute was facially overbroad and vague, and therefore in violation of the First Amendment. The Anti-Riot Act, passed in 1968, prohibits inciting a riot, or “to organize, promote, [or] encourage or otherwise furthering any rioting." While it has not been challenged for some time, courts upheld the law as constitutional shortly after it was passed.

The Fourth Circuit, however, found differently here, although the unanimous panel was quick to point out that they found only part of the statute to be unconstitutional. Inciting violence has never been protected speech, and the Fourth Circuit did not hold otherwise in this decision. However, the judges found the words “promote" and “encourage" to be overbroad. Under Brandenburg v. Ohiothe Supreme Court held that only speech that is likely to lead to “imminent lawless action" is unprotected by the First Amendment. Encouraging or promoting rioting may not necessarily lead to imminent lawless action. On the other hand, “organize" is a much clearer verb that involves concrete steps.

Not a Win for the Defendants

While the court agreed with the defendants' argument to some extent, the result of the case is by no means a win for the two incredibly unsympathetic defendants.

Because the Fourth Circuit only took issue with a portion of the statute, and it could be severed from the rest of the statute, the holding does not render the Anti-Riot Act unconstitutional. Instead, the court struck out the words “promote" and “encourage."

Further, the Fourth Circuit declined to overturn the two defendants' conviction, writing that "because the record . . . establishes conclusively that the defendants' substantive offense conduct falls under the statute's surviving purposes, their convictions must stand." For those two, the "win" doesn't even amount to a Pyrrhic victory, as they will remain convicted felons.

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