Fourth Circuit Holds The Line On Brandenburg, Strikes Down Part of Anti-Riot Act

But That's No Use To The Defendants, Because Wonkery

Yesterday the United States Court of Appeals for the Fourth Circuit struck down parts of the federal Anti-Riot Act under the First Amendment, but affirmed the convictions of two white supremacists convicted under the statute for travelling to Charlottesville to do violence.

Hold up a minute, you might say. How does that work? How can you say the statute is unconstitutional but the conviction under it is affirmed?

The case — United States v. Daley — illustrates how procedural meta-issues can limit the fortunes of individual litigants even as courts resolve the big substantive issues in favor of the First Amendment.

Michael Paul Miselis and Benjamin Drake Daley are two white supremacist assholes from California who were part of the Rise Above Movement, self-styled as RAM, which has absolutely no undertones and stop thinking it does. They took part in two RAMmings in California and in the infamous Charlottesville “Unite the Right” events in 2017 of fine-people-on-both-sides fame, engaging in fistfights. They were charged with a federal conspiracy to violate the federal Anti-Riot Act, which prohibits travelling in interstate commerce in order to riot. They eventually entered a conditional guilty plea that allowed them to plead guilty while preserving for appeal the argument that the Anti-Riot Act violated their First Amendment rights. Normally a guilty plea waives all attacks on the charges against you, but a conditional plea allows you to appeal a specified issue, like the denial of a motion to suppress or a constitutional challenge. As often as not it’s a method used to convince defendants to plead guilty, as the appellate challenges are rarely successful.

So too here. To summarize and simplify, the Fourth Circuit determined that the Anti-Riot Act is unconstitutional to the extent it uses too broad a definition of “incite a riot,” including “to organize, promote, encourage, participate in, or carry on” a riot. There’s a well-established exception to the First Amendment for incitement. But under Brandenburg v. Ohio, that exception only encompasses speech that is intended and likely to cause imminent lawless action. Speech that doesn’t meet that test — like speech generally advocating for lawless action in the abstract, not aimed at an imminent result — remains protected. In this case, the Fourth Circuit found that a few parts of the statute stretched past this narrow exception by criminalizing efforts to “encourage” or “promote” a riot. Some speech encouraging or promoting a riot (like speech to a hot crowd looking for trouble) can fall under the incitement exception, but some speech (like speech generally discussing why a riot is justified or good) does not. Similarly the court found that the Anti-Riot Act violates the First Amendment to the extent it prohibits speech “urging” others to riot. By contrast, the court found that the statute’s language making it a crime to “organize” a riot falls within the exception, because organization necessarily involves more than theoretical discussion.

That’s the substantive part of the decision, and relatively straightforward. It’s overshadowed by the very wonky meta parts of the opinion — the parts that deal with the process of how we sort out First Amendment issues. These parts are arcane and often incomprehensible to non-lawyers, and for good reason — they’re cloaked in legal mumbo-jumbo that makes even well written expositions (like this decision) very difficult to follow.

For example, take the issue of “overbreadth.” The overbreadth doctrine lets a litigant — like these defendants — argue that a law violates the First Amendment even when the argued violation isn’t present in their case. Here, there was no question that the defendants’ behavior fell into well-established First Amendment exceptions. The question is whether they could challenge the entire statute anyway, because some possible applications of the statute reach protected speech. The question is whether a statute is “substantially overbroad” — meaning that it reaches a lot of protected speech, both in an absolute sense and in comparison to the legitimate constitutional parts of the statute. Put another way, you can only challenge a statute as violating the First Amendment rights of hypothetical other people if there are a lot of possible violations and a big portion of the statute’s uses are unconstitutional. [We are experimenting with using “big” or “lots” instead of “substantial” to make law comprehensible. Pardon our dust.]

So here, the Fourth Circuit found that the flaws in the Anti-Riot Act were big enough that it allowed the defendants to make a facial challenge, and therefore considered the attack on the statute, and found parts of it unconstitutional. But the Court still affirmed their convictions! Why? It’s because of another wonky, meta doctrine — severability. Severability asks this: does the baby go with the bathwater? If the Court finds that parts of this law are unconstitutional, can it strike down just those parts, or does it have to throw the whole law out? Here, applying that sometimes convoluted and precedent-based doctrine, the Court found that it could, and should, strike down just the unconstitutional parts of the Anti-Riot Act and leave the rest. Because the defendants were convicted under parts of the statute that survived the challenge, they stay convicted. They get a moral victory, though, which I’m sure is very comforting.

There’s one other type of common meta law-wonkery worth noting here — the doctrine of susceptibility. This doctrine is what you apply when you decide whether you’re offended by what your spouse said because it could be taken in both offensive and non-offensive ways. In the legal context, it involves this question: when a law’s language could be read one way and be constitutional, or read another way and be unconstitutional, should we read it the constitutional way? Should a court say, in effect, “this law violates the First Amendment unless we define this one term specifically and narrowly, and so we shall”? Or, as courts put it, is it “readily susceptible to a limiting interpretation”? This question is asked for all sorts of law, but it’s particularly sticky for First Amendment law, because statutory language that a court has to explain is more likely to chill speech. Here the Court found that it would have to come closer to rewriting the language than to interpreting it to make it constitutional, so it declined to do so.

Note that all of these wonky issues — facial v. as applied challenges, overbreadth, limiting interpretations, severability — are variations on the same theme: limitations on court power. These doctrines are all vehicles of judicial conservatism, a term I mean in a legal sense — the idea that courts shouldn’t decide things they don’t have to decide, and not strike down statutes unless they have to. Much wonkery flows from that spring.

If you can wade through this opinion, you can endure nearly any First Amendment opinion. It’s rough waters, but give it a try.

—Ken