Alt-Right Martial Artists Challenge Anti-Riot Law on First Amendment Grounds

The Anti-Riot Act has been used against Capitol and George Floyd rioters

Jan. 6 Capitol rioters / Getty Images
March 19, 2021

Defense lawyers for a pair of white nationalists are asking the Supreme Court to strike down a federal anti-rioting law that authorities have used to prosecute people involved with the George Floyd riots and the Jan. 6 attack on the Capitol.

The defendants, Michael Miselis and Benjamin Daley, were convicted under provisions of the federal Anti-Riot Act for wrongdoing at the 2017 "Unite the Right" rally in Charlottesville, Virginia. The Anti-Riot Act makes it a crime to promote or encourage a riot. Two federal courts have struck portions of the law on free speech grounds.

Miselis and Daley argue that the act is overbroad and criminalizes constitutionally protected speech. A victory for the defendants would prompt new rounds of litigation and create a headache for prosecutors as they work through the caseload from widespread protests that stretched from last summer into this year.

The Anti-Riot Act has been an invaluable tool for authorities prosecuting rioters involved in Floyd-related street violence and the Capitol uprising. Jacob Angeli, the headdress-clad "Q-Anon shaman" who became a symbol for the events of Jan. 6, was charged with offenses under the act in a Washington federal court. Even if the court strikes down the Anti-Riot Act, Angeli and others like him could still be charged with different offenses.

Miselis and Daley are members of the Rise Above Movement, a white supremacist group that bills itself as the premier mixed martial arts club of the alt-right. In court documents, prosecutors alleged that the defendants and other members of their group traveled to Charlottesville to encourage rioting. Surveillance footage shows the pair assaulting counter-demonstrators.

Both men pleaded guilty to Anti-Riot Act charges. Other members of the Rise Above Movement were separately charged with act violations at a federal court in California for similar activities at demonstrations in Berkeley and Huntington Beach.

The Anti-Riot Act makes it a crime to "organize, promote, encourage, participate in, or carry on" a riot. Penalties include up to five years in jail and a $250,000 fine. Congress passed the law in 1968 as race and anti-war riots roiled the nation. Lawmakers who championed the bill meant for it to target bad actors fomenting the unrest. Apart from criminal prosecutions, the law is also used to obtain grand jury wiretaps and search warrants.

Defense lawyers say the law is overbroad and should be struck down for sweeping up protected speech alongside genuinely unlawful activities.

Miselis and Daley say the First Amendment defends expression the law criminalizes, such as promoting or encouraging a riot. And the Supreme Court's incitement cases make clear that speech is protected unless it is likely to cause near-term lawlessness. Defense lawyers argue that the Anti-Riot Act doesn't include those qualifications.

The law's definition of "riot" is similarly overbroad, they argue. The Anti-Riot Act defines a riot as a public disturbance with three or more people.

Those arguments have notched at least partial victories in the lower courts. In Miselis and Daley's case, the Richmond-based Fourth U.S. Circuit Court of Appeals struck down portions of the law but upheld the bulk of the statute. The three-judge panel agreed that certain ARA provisions unconstitutionally infringe on free speech. But other provisions focus purely on criminal conduct, the court ruled, and remain valid. The San Francisco-based Ninth U.S. Circuit Court of Appeals reached a similar conclusion in the California Rise Above Movement prosecutions.

Those decisions ultimately kept the defendants' convictions in place.

When a federal court strikes down parts of a law on constitutional grounds, the Department of Justice usually asks the Supreme Court to intervene. But the Biden Justice Department declined to do so in this case. In a letter to House Speaker Nancy Pelosi (D., Calif.), acting solicitor general Elizabeth Prelogar said that the government succeeded in defending most of the Anti-Riot Act and that none of the defendants have succeeded in overturning their convictions.

Defense lawyers counter that the government is just being tactical. While two appeals courts struck parts of the law, the entirety of the Anti-Riot Act remains good law in most of the country.

"The Department of Justice has departed from its longstanding policy of seeking [review] in cases like this to strategically preserve the use of this overbroad law," Daley's petition reads.

The petition adds that the Court's intervention is especially important given continued social upheaval.

"The nationwide unrest that followed George Floyd's death in May of 2020 and the months of protests, violent conflicts, riots, and uncertainty about the difference between lawful and unlawful dissent underscores the need for this Court to address the constitutionality of this broad law."

The government's response to Daley's petition is due on April 8. The case is No. 20-7377 Daley v. U.S.

Daley v. U.S. cert petition by Washington Free Beacon