After lying nearly dormant for decades, the Federal Anti-Riot Act of 19681 reemerged into the spotlight over the past few years as prosecutors invoked the law against white supremacists, demonstrators advocating for racial justice, and insurrectionists at the U.S. Capitol.2 Recently, in United States v. Miselis,3 however, the Fourth Circuit became the first federal appellate court to hold that parts of the Anti-Riot Act unconstitutionally infringed on protected advocacy under the First Amendment.4 With more courts poised to adjudicate prosecutions under the Anti-Riot Act and assess its constitutionality, the import of this decision has grown. Overall, the Fourth Circuit reached a reasonable, pragmatic outcome supported by current doctrine. Nevertheless, the court missed an opportunity to strengthen the public legitimacy of its decision by acknowledging the Act’s racialized history, distancing the Act’s current uses from its origins, and expressing a broader judicial commitment to grappling with complicated questions regarding race.
Defendants Benjamin Daley and Michael Miselis were members of the Rise Above Movement, a white supremacist, militant organization that encourages members to attend political demonstrations to engage in violence against counterprotestors.5 In 2017, the defendants traveled to various political rallies, including the infamous “Unite the Right” rally in Charlottesville, where they participated in violent clashes with counterprotestors.6 In 2018, they were charged with traveling in interstate commerce with the intent to riot in violation of the Anti-Riot Act.7
(a) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce . . . with intent —
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) . . . .
18 U.S.C. § 2101(a).
Section 2102(b) defines some of the statute’s relevant terms:
(b) [T]he term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.
18 U.S.C. § 2102(b).
The United States District Court for the Western District of Virginia denied the defendants’ motion to dismiss the indictment, rejecting their arguments that the Act was facially invalid because it was unconstitutionally vague, overbroad, and criminalized more than unprotected incitement.8 In regard to the overbreadth challenge, the court ruled that the Act “does not criminalize peaceful protest or lawful assembly but rather targets ‘public disturbance[s] involving’ violence or the threat of such violence undergirded by the ‘ability of immediate execution.’”9 Next, the court held that the terms in § 2101 (for example, “incite” and “promote”) satisfied the Brandenburg v. Ohio10 incitement test because they criminalized only speech that bore the “required relation to action” under Brandenburg.11 Subsequently, Daley and Miselis entered conditional guilty pleas on condition of appellate review of the Act.12
The Fourth Circuit affirmed the convictions.13 Writing for a unanimous panel, Judge Diaz14 held the Anti-Riot Act was not unconstitutionally vague, but did “sweep[] up a substantial amount of [protected] speech,” violating the First Amendment.15 However, the court determined that the Act need be only partially invalidated because the “discrete instances of overbreadth” were severable.16 In its assessment of whether the Act was facially overbroad, the court announced an analytical framework that “reflect[s] the notion ‘that the overbreadth doctrine is strong medicine’”17: the court must (1) construe the statute and introduce limiting constructions where feasible; (2) examine whether the stat-ute “criminalizes a substantial amount” of speech related to its “plainly legitimate sweep;” and, if so, (3) conduct a severability analysis.18
The court began its overbreadth analysis by examining the Act’s specific intent elements. It first assessed the plain meaning of the speech-related verbs in § 2101(a)(1)–(2) (for example, “incite” and “organize”) and their narrowing context provided in § 2102(b).19 After determining that the plain meaning of “incite” had the requisite relationship between speech and lawlessness,20 the court analyzed dictionary meanings to find that “promote,” “encourage,” and “urge” were overbroad because these terms swept up too much conduct unlikely to result in an imminent riot.21 The court then concluded that “organize” was not overbroad because it encompassed “concrete aid” to rioting.22 Proceeding to § 2102(b)(2),23 the court deemed the provision overbroad because its double negative language meant the provision criminalized mere advocacy of violence.24
In the second step of its overbreadth analysis, the court contended that the statute’s overbreadth was substantial in relation to its “plainly legitimate sweep.”25 Comparatively, the amount of proscribed protected speech “dwarf[ed]” the proscribed unprotected speech because it “cover[ed] the . . . realm of advocacy that Brandenburg protects.”26
Ultimately, the court held that the overbroad provisions of the Act were severable from the constitutionally valid provisions.27 It proceeded by first establishing the framework for its severability analysis: a statute is severable if (1) there are constitutionally valid provisions; (2) those provisions can function independently; and (3) the remainder of the statute is consistent with Congress’s original purposes in enacting it.28 The court argued that the valid provisions could function independently considering that the “‘offending’ language” comprised only a small subset of the Act’s specific intent elements, and the court could “cleanly excise[]” them.29 Because Congress aimed to “proscribe, to the maximum permissible extent, unprotected speech and conduct” relating to riots and interstate commerce, the court concluded that if Congress could have foreseen the Brandenburg ruling, it would have enacted the revised version of the statute instead of forgoing a statute altogether.30 Finally, the court affirmed the defendants’ convictions because their conduct still fell within the purview of the statute’s remaining provisions.31
The Fourth Circuit reached a logical, pragmatic outcome in its overbreadth and severability analyses that was consistent with current First Amendment and severability doctrine. However, the opinion’s compromise approach missed an opportunity to acknowledge the Anti-Riot Act’s racialized legislative history, distance the Act’s current uses from its origins, and exhibit the court’s commitment to addressing complicated questions regarding race. The Act’s origins, which were raised in the appellants’ brief, suggest a congressional focus on establishing a federal mechanism to target the speech and conduct of so-called “outside agitators,” specifically, Black political leaders and Communists, who were supposedly able to evade existing state anti-riot statutes.32 In avoiding the Act’s legislative history, the court did not consider the importance of judicial rhetoric and its discussions of racial context in legitimating certain narratives and outcomes. Although this discussion of the Act’s racialized history would not have helped the court’s doctrinal analysis, addressing the Act’s racial context still would have strengthened the legitimacy of the court’s decision.
The Miselis court’s compromise approach of selectively introducing limiting constructions to the Anti-Riot Act pragmatically preserved key provisions of the statute, while also severing the most threatening. Its method offers a logical middle ground between those decisions that have upheld the entire Act33 and those that have opted to strike it down completely.34 The court correctly recognized that overbreadth is strong medicine and that courts should seek limiting constructions where feasible to avoid constitutional issues.35 In doing so, it maintained the Act as a “critical federal tool,” which, the government argued, enables prosecution of individuals who use facilities of interstate commerce to organize and incite “violent cross-jurisdictional conduct” that states are unwilling or unable to prohibit.36 But the court also correctly refused to introduce limiting constructions to the provisions of the statute with the most attenuated relationship between speech and imminent lawlessness.37 This refusal was a wise decision considering the statute’s infrequent use by federal prosecutors38 and tenuous precedent.39
The court’s omission of the Act’s legislative history and potential purpose is supported by current doctrine. First, the Supreme Court has held that it will not invalidate an otherwise constitutional statute solely on the basis of an allegedly impermissible legislative motive in First Amendment cases.40 Second, although severability analysis has traditionally looked at legislative history as part of its counterfactual legislative intent prong,41 recent case law has moved away from considering legislative history and toward a strong presumption of severability.42 Therefore, the court followed the predominant approach when, instead of grappling with the Act’s historic focus on criminalizing the conduct of Black and Communist leaders, it merely concluded that “minimal severance” was consistent with Congress’s overall purpose: “[T]o proscribe, to the maximum permissible extent, unprotected speech and conduct that both relates to a riot and involves the use of interstate commerce.”43
Nonetheless, in trying to adopt a compromise approach and portray the Anti-Riot Act in a favorable light, the court’s rigid focus on doctrine ignored the Act’s racialized history, which had been raised in the appellants’ brief44 and a journal article the opinion cited.45 Congress passed the Act in the aftermath of several summers of riots occurring across American cities related to racial justice and anti-war movements.46 The legislative history indicates that Communists and Black political leaders, not white supremacists, were the Act’s primary targets because they were seen as the culprits of these urban riots. In the floor debate and committee reports in the Senate and House, these individuals were characterized as “outside agitators” traveling across the country to foment unrest.47 For example, notorious segregationist Senator Strom Thurmond, one of the cosponsors of the Anti-Riot Act, named well-known Black activists, such as Stokely Carmichael and H. Rap Brown, as encouraging and inciting riots when he introduced the amendment — arguing that it was necessary to “protect society from the extremist element which advocates the destruction of our nation.”48 Representative William Cramer echoed similar sentiments in his statement: “[This leg-islation] is aimed at those professional agitators . . . who either operate from States outside the jurisdiction of local law enforcement officials or who come into a jurisdiction, inflame the people therein to violence, and then leave . . . .”49
Moreover, the importance of judicial opinions is not limited to their outcomes and doctrinal soundness; the rhetoric of an opinion is also important for its long-term effects on social outcomes, the concerns it legitimates,50 and the commitments it expresses, especially in regard to issues of race.51 Specifically, judicial rhetoric helps shape public debate and political consciousness.52 As recently exemplified by the Supreme Court in Ramos v. Louisiana,53 the racial context of laws can also be grappled with and acknowledged by courts, even when it is not doctrinally necessary, to signal a concern with racial issues and broader inequities.54 In addition, judicial rhetoric has tangible effects. Even when a judicial holding might be favorable to racial minorities, omissions and obfuscations of important racial context reinforce majoritarian narratives and thus help maintain the status quo in the long run.55 A consideration of racial context thus represents an attempt to focus on law’s “previously neglected features”56 and the views of the less powerful.
Addressing the racial context of the Act, as raised by the defendants, would have also enhanced the public legitimacy of the court’s decision. As Judge Wald notes, the explanations in judicial opinions are one means by which a court justifies its power to make important decisions affecting the lives of ordinary citizens.57 Constitutional law in particular depends on a significant degree of popular acceptance for its legitimacy.58 Professor Jamal Greene posits that legitimacy at the appellate level can be established by courts “[c]ommunicating [social] awareness,” which aids the “democratic responsiveness and the administrability of constitutional rules.”59 In light of societal concerns about the Anti-Riot Act’s legislative and enforcement history, including the potential shift between targeting white supremacists to people of color engaged in demonstrations for racial justice,60 a case dealing with white supremacists engaged in violence was the perfect opportunity for the court to acknowledge these racialized origins while also pivoting to how the Act is now being used.
Despite the court reaching a reasonable and doctrinally sound outcome in its overbreadth and severability analyses, it still missed an opportunity to acknowledge and reconcile the Anti-Riot Act’s controversial origins and legislative history, which revealed a congressional focus on the speech and conduct of Black political leaders and suspected Communists. This approach would have strengthened the public legitimacy of the opinion and demonstrated the court’s commitment to grappling with complicated questions regarding race. As more courts are poised to examine the Act’s constitutionality with the recent spate of federal indictments under the Act, its racialized origins will likely continue to be invoked and even co-opted by white supremacists as an argument to invalidate it.61 This co-optation further demonstrates the importance and increasing publicity of the racialized history of the Act,62 and the need for courts to incorporate the history as part of their analysis to uphold or invalidate the Act.