Josh Gerstein, Politico, March 4, 2021
A federal appeals court on Thursday struck down portions of an anti-riot law used to target white supremacists.
Still, the ruling found enough of the law constitutional to reinstate charges against four men prosecuted under the statute.
The 9th U.S. Circuit Court of Appeals decision overturned a district court judge’s ruling in 2019 that found key sections of the Federal Anti-Riot Act violated the First Amendment by criminalizing speech that did not incite imminent lawless action.
“We recognize that the freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society. Nevertheless, it would be cavalier to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them,” the appeals court panel wrote.
The decision may help overcome concerns at the Justice Department about the use of the statute to prosecute individuals who use the internet, email or telephones to organize violent protests, as well as those who travel across state lines to do so.
The new ruling means four southern California men who allegedly belonged to a “combat-ready” white supremacist group known as the Rise Above Movement could soon be back in federal court to face the criminal cases dismissed in 2019.
Prosecutors said the men traveled to liberal rallies in places like Huntington Beach and Berkeley, Calif., where they attacked demonstrators and in one case, a journalist.
The 9th Circuit panel agreed with the lower court that the statute intruded on protected speech, but the appeals court said the proper course was not to strike down the entire law. Instead, the appeals judges said courts should simply ignore the statute’s prohibitions on urging, encouraging, promoting or organizing a riot. That left standing bans on inciting, participating in or carrying on a riot, as well as committing acts of violence in connection with a riot.