While the decision parries the 1968 law, the outcome could be less for the Department of Justice.
Last year, a federal judge in Santa Ana, California ruled the entire federal Anti-Riot Act unconstitutional because of the same concerns about acquittal. Based on that ruling, the judge dropped a criminal case that was filed there against three other suspected members of the Rise Above Movement who did not travel to Charlottesville. Lawyers have appealed that decision to the San Francisco-based 9th Circuit.
Monday’s 4th Circuit ruling does not go so far as to allow the federal authorities’ power in place to use the law against individuals who “organize” or “encourage” a riot.
“In our view, the Anti-Riot Act sweeps up a substantial number of speeches that preserve the status of protected lawyers,” Obama nominee Albert Diaz wrote in a 46-page decision, joining Clinton nominees Robert King and George W. Bush appointed Allison Rushing. “The appropriate remedy is to make no more valid than the language responsible for the surplus of the statute.”
Back in May, Attorney General William Barr specifically mentioned the anti-insurgency statute when he warned that the federal government was targeting those involved in injustices.
“It is a federal crime to cross state lines or use interim facilities to incite or participate in violent uprisings. We will enforce these laws, ”Barr told reporters at a news conference.
The 4th Circuit denied lawyers’ arguments for Miselis and Daley that the statute is unconstitutionally vague. And perhaps most crucially for the two suspects, the judges concluded that the conduct and conduct of the men at events in California and Charlottesville was physical and violent in that it carried out the speech that the court found legally protected.
“The suspects have admitted that they each (as part of a mix of three or more) personally committed multiple acts of violence” – including, but not limited to, pressure, punch, kick, choke, head-butting and other attacks of various persons, and none of ‘was in self-defense,’ “Diaz wrote, citing the facts that Miselis and Daley set as part of conditions for guilty plea that allowed them to challenge the underlying law.
‘The crimes of the suspects apparently have nothing to do with speech that tends to encourage, promote or incite others; only advocate of violence; as another First Amendment activity, ”Diaz concluded.
A spokesman for the U.S. Attorney’s Office in Roanoke, which is handling the case, declined to comment on the ruling.
Attorneys for Miselis and Daley issued a statement saying they were considering “potential next steps” in the case, which could include a further assessment of the full bench of the higher appeal or of the Supreme Court.
“Today, the Fourth Circuit became the first federal appeals court in the United States to hold that the Anti-Riot Act is unconstitutional because it violates the protection of First Amendment and protests,” wrote attorneys Lisa Lorish and Raymond Tarlton. “This ruling is of particular significance because the Department of Justice is actively using this law to prosecute individuals in the wake of the protests following the murder of George Floyd after decades of little to no use of the law. We are nevertheless disappointed that the court decided to separate only parts of the statute instead of beating it in its entirety. “
