As protests and riots erupt across the country from various groups across the political spectrum, politicians and lawmakers have been scrambling to find ways to return peace and order that we have seen at less politically divisive times. While some leaders seek to understand and target the root issue of behind the riots, others have been looking to suppress the people instead. The Federal Anti-Riot Act is one such statute that has been brought into the spotlight after a long time of neglect, as it can be a tool to suppress the assumed sources of civil unrest. However, due to the vague language of the act, it can also be used to violate our First Amendment Rights to free speech. With the threat this poses to civil rights and the danger of the current administration wielding this law against people across the country for speaking their mind, the attorneys at Tarlton | Polk have been playing their part in challenging it.

police holding back protestors
Police holding back protestors

What is the Anti-Riot Act?

Title 10 of the Civil Rights Act of 1968, most known as the Anti-Riot Act, makes it a felony to:

Travel in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—
  • To incite a riot
  • To organize, promote, encourage, participate in, or carry on a riot
  • 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 . . .

The statute goes on to further define riot in a broad, vague, and confusing manner, including the use of a double negative in attempt to ultimately criminalize even the mere advocacy of using force to accomplish change. Such advocacy of force was declared by the Supreme Court, in its Brandenburg v. Ohio case, as constitutionally protected under the First Amendment’s safeguards for speech and expressive conduct.

To rephrase the statute, travel across states or country, as well as mail, phone and other modern technologies that involves or is in connection to a Riot can subject people to felony charges. Today, this can include the use of social media to “promote” riots, even for people who do not actively participate in the riot itself.  Essentially, this act can be used to punish people for speech that should be protected under the First Amendment, which means it should be deemed unconstitutional. So why was it created in the first place, and why has it still not been struck down?

The History of the Act

The Anti-Riot Act could seem like a rather unusual act to those unfamiliar with U.S legislative history and some of the corrupt procedures that have taken place. The Civil Rights Act of 1968, of which the Anti-Riot Act is part of, was largely implemented as a follow-up to the Civil Rights Act of 1964 to include provisions against housing discrimination. So, why would a mostly positive act that would advance civil rights also include a bill rider that can be used to suppress free speech rights?

The act was drafted at a time of civil unrest and riots following the assassination of Martin Luther King Jr. People across America were looking to their political leaders to put an end to the unrest, but there was tremendous ongoing debate within Congress and between President Johnson and other officials. A report from President Johnson’s commission attributed the riots to racial division and poverty sustained by “white society” and “white institutions”. It recommended that multi-billion dollars in federal funds should be spent on housing, employment, education, and public welfare of low-income people to quell the rioting. Backlash from law-and-order politicians and pro-segregation Republican congressmen was swift. They believed the federal response to the riots should be to criminalize rioting activity. What they mainly wanted to target was not the violent acts taken place at the riots themselves, which were already criminalized. They wanted to implement an act that could stop riots at their supposed source, the organizers, supporters, and people who travel and share information related to riots to support them. While anti-riot bills went through numerous versions, it ultimately made it into the Civil Rights Act of 1968 as a compromise between pro-civil rights politicians and pro-segregation or pro-order politicians.

lyndon b johnson signing the anti-riot act
President Lyndon B. Johnson signing the Civil Rights Act of 1968, which included the Anti-Riot Act

The act drew criticism from the start, and it has always raised questions about whether it violates the Constitution or not, yet it remains in place to this day. The reason being for this may just be because it has not seen very much enforcement, and few people are even aware it exists. The lack of enforcement can be attributed to the relative peace that followed the civil rights era. Or at the very least, the relative lack of public disturbance due to racial division since then, as this act was put in place to suppress racial minority led protest and civil disobedience. This peace has mostly persisted until recently, when Black activists have rallied in protest of police brutality and discriminatory institutions while right-wing groups, reinvigorated by divisive political leadership, have reacted to this perceived attack on their interests. With increasingly divisive politics and the eruption of riots, the Anti-Riot Act has started to see use against protestors and rioters from all kinds of groups. However, with its return to the spotlight, it is finally starting to receive the pushback it deserves, and attorney Raymond Tarlton and the firm have been playing a key role in that.  

The Anti-Riot Act Today — and What We're Doing to Stop It

In August 2017 a rally in Charlottesville, Virginia erupted in rioting that many participants have faced charges for. The Anti-Riot Act had been used against many members of the Rise Above Movement who participated in and organized the rally, including people who did not attend the rally in Charlottesville. In 2019, a federal judge in California struck down these charges against three alleged members of the Rise Above Movement, ruling the entire Anti-Riot Act unconstitutional for violating free speech.

The Anti-Riot Act was also used in another case involving two men from California, Michael Paul Miselis and Benjamin Drake Daley, both participants in the rally at Charlottesville. Attorney Raymond Tarlton represented Miselis, while Daley was represented by Assistant Federal Public Defender Lisa Lorch. Both attorneys argued against the constitutionality of the Anti-Riot Act and how much of the law violates rights to free speech, and can be used to suppress the right to expression regardless of where one stands on the political and social spectrum. While the act was not judged as completely unconstitutional, the court determined that parts of it encompassed protected speech, including the words “encourage” or “promote” or “urge” which did not entail a direct threat or direct connection to acts of violence. While the results of this case were not as big of a blow against the Anti-Riot Act as the California case a year ago, and the defendants still faced charges due to allegations of engaging in fights at the rally, this challenge was by no means insignificant. The need to push back against such a law may not seem as evident when it is used against a group promoting speech that the majority in a society deplore, but it is always crucial to understand how it can also be used against those promoting positive social change or otherwise engaging in the constitutionally protected “market place of ideas” as the best vehicle in the search for truth compared to government imposed censorship on viewpoints. As attorneys Raymond Tarlton and Lisa Lorish wrote about the ruling:

This ruling has particular significance as the Department of Justice is actively using this law to prosecute individuals in the aftermath of the protests following the murder of George Floyd after decades of little to no use of the law. . .

As the ruling only challenged parts of the act, there is still plenty of potential for it to be abused by prosecutors looking to grab headlines but operating with disregard to the harmful impact such prosecutions can have on a robust “market place of ideas” in a free society. both attorneys continued:

We are nonetheless disappointed that the Court decided to sever only parts of the statute instead of striking it down in its entirety.

As we expect more cases where the Anti-Riot Act will be used against our constitutional rights to freedom of speech and expression, especially protest against systemic injustices, our legal team will be on the lookout for such cases and continue to fight against it. We hope that, with hard work, our legal team and fellow attorneys and civil rights activists across the nation can get this unjust law overturned.