Court narrows law used to target white supremacists

A federal appeals court on Thursday struck down portions of an anti-riot law used to target white supremacists.

Still, the ruling found enough of the law constitutional to reinstate charges against four men prosecuted under the statute.

The 9th U.S. Circuit Court of Appeals decision overturned a district court judge’s ruling in 2019 that found key sections of the Federal Anti-Riot Act violated the First Amendment by criminalizing speech that did not incite imminent lawless action.

“We recognize that the freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society. Nevertheless, it would be cavalier to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them,” the appeals court panel wrote.

“Of course, the government cannot act to avert a perceived danger too soon, but it can act before it is too late,” the court added.

The decision may help overcome concerns at the Justice Department about the use of the statute to prosecute individuals who use the internet, email or telephones to organize violent protests, as well as those who travel across state lines to do so.

During the protests and unrest last year that followed the death of George Floyd in the custody of Minneapolis police, the Justice Department filed more than half a dozen criminal cases under the same Anti-Riot Act statute against those who allegedly fomented rioting.

That section of the law has not been used yet to charge alleged participants in the Jan. 6 storming of the U.S. Capitol, but the involvement of federal personnel, federal property and the fact that the events took place in Washington, D.C., give federal prosecutors more options for charges in those cases.

The new ruling means four southern California men who allegedly belonged to a “combat-ready” white supremacist group known as the Rise Above Movement could soon be back in federal court to face the criminal cases dismissed in 2019.

Robert Paul Rundo, Robert Boman and Aaron Eason were awaiting trial at the time of the decision striking down the law. Tyler Laube had pleaded guilty in the case but was permitted to withdraw his plea.

Prosecutors said the men traveled to liberal rallies in places like Huntington Beach and Berkeley, Calif., where they attacked demonstrators and in one case, a journalist.

The 9th Circuit panel agreed with the lower court that the statute intruded on protected speech, but the appeals court said the proper course was not to strike down the entire law. Instead, the appeals judges said courts should simply ignore the statute’s prohibitions on urging, encouraging, promoting or organizing a riot. That left standing bans on inciting, participating in or carrying on a riot, as well as committing acts of violence in connection with a riot.

The ruling from the San Francisco-based court largely tracks with a decision last year from the Richmond, Va.,-based 4th Circuit on Rise Above Movement members who pleaded guilty to attacking counterprotesters at the 2017 "Unite the Right" Rally in Charlottesville, Va.

The new 9th Circuit decision was issued by Judge Richard Paez, an appointee of former President Bill Clinton, and Judge Jon Tigar, an appointee of former President Barack Obama.

The third member of the panel dissented in part from the decision. Judge Ferdinand Fernandez said he would have left in place even more of the statute, upholding the prohibition on urging or organizing a riot.

Fernandez, an appointee of former President George H.W. Bush, said the word “urge” captures a degree of imminence and that the idea of organizing a riot goes beyond the abstract promotion of violence. The Supreme Court has said simply encouraging violence or lawbreaking generally enjoys First Amendment protection unless tied to a specific plan or imminent violence.

A lawyer with the federal public defender’s office in Los Angeles, which argued the challenge to the law, had no immediate comment on the ruling. The defendants could ask a larger panel of the 9th Circuit to take up the case or seek review at the Supreme Court.

A spokesperson for the U.S. Attorney’s Office in Los Angeles also had no immediate comment on the decision.