Skip to main content

Are you a legal professional? Visit our professional site

Search for legal issues
For help near (city, ZIP code or county)
Please enter a legal issue and/or a location

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

CHARLOTTESVILLE, VA - AUGUST 12:  White nationalists, neo-Nazis and members of the "alt-right" clash with counter-protesters as they attempt to guard the entrance to Emancipation Park during the "Unite the Right" rally August 12, 2017 in Charlottesville, Virginia. After clashes with anti-fascist protesters and police the rally was declared an unlawful gathering and people were forced out of Emancipation Park, where a statue of Confederate General Robert E. Lee is slated to be removed.  (Photo by Chip Somodevilla/Getty Images)
By Joseph Fawbush, Esq. on September 01, 2020 11:35 AM

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.

Related Resources

Winner Take All Electoral College System in South Carolina Is Constitutional (FindLaw's U.S. Fourth Circuit)

Standard Set: First Amendment Retaliation Constructive Discharge (FindLaw's U.S. Eleventh Circuit)

Find a Lawyer

More Options