Petition for Writ of Certiorari — Michael Paul Miselis, Petitioner v. United States

Supreme Court briefMar 4, 2021

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No. _______

In The

Supreme Court of the United States

-------------------------- ♦ ---------------------------

MICHAEL PAUL MISELIS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

-------------------------- ♦ --------------------------

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-------------------------- ♦ --------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------- ♦ --------------------------

Raymond C. Tarlton

Counsel of Record

TARLTON POLK, PLLC

Post Office Box 1386

Raleigh, North Carolina 27602

(919) 948-6464

rtarlton@tarltonpolk.com

Counsel for Petitioner

Dated: March 4, 2021

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

QUESTIONS PRESENTED

The Federal Anti-Riot Act (“Act”) prohibits

interstate travel or the use of the facilities of

interstate commerce with the intent to engage in a

number of activities related to a “riot.” 18 U.S.C.

§ 2101. The prohibited activities include the inciting,

organizing, promoting, encouraging, participating in,

or carrying on of a riot, as well as the commission of

any act of violence in furtherance of a riot. The law

was passed in response to the civil rights riots of the

1960s and was immediately used to prosecute

Vietnam War Era protesters. After the Seventh

Circuit

narrowly

(2-1)

upheld

the

facial

constitutionality of the law, while vacating the

convictions of the Chicago Seven, the law fell out of

use and faded from public view. But no longer.

In response to recent civil unrest around the

country, prosecutions under the Act have resumed,

and the lower courts are divided on the

constitutionality of the law. The Fourth Circuit held

below that certain aspects of the Act were facially

overbroad, but that those portions of the law were

severable from the rest of the statute. Moreover, the

court inferred that the petitioner knowingly pled

guilty to the constitutional parts of the law, upholding

his conviction under the same. In a twin prosecution

in the Central District of California, the district court

struck down the law as unconstitutional in its

entirety. And both of these decisions conflict, in

different ways, with the Seventh Circuit’s

interpretation of the law. At this time in our nation’s

history, this Court should resolve the important

questions of the dividing line between protest and

riot, and the constitutional limit of the federal

government’s power to prosecute individuals in the

aftermath of local social unrest.

The questions presented are:

Whether 18 U.S.C. § 2101, the Anti-Riot

Act, is facially invalid under the First

Amendment.

If so, are the constitutionally infirm

provisions of the statute severable.

Whether a defendant’s plea to conspiring

to commit a federal statute is

unknowing,

unintelligent,

and

involuntary when significant portions of

the statute are later declared to be

unconstitutional.

iii

PARTIES TO THE PROCEEDING

The petitioner is Michael Paul Miselis who was a

criminal defendant in the court below.

STATEMENT OF RELATED CASES

U.S. Court of Appeals for the Fourth Circuit:

United States v. Miselis, 972 F.3d 518 (4th Cir.

2020): Petition for certiorari is being

simultaneously filed by co-defendant Benjamin

Daley who has appointed counsel preventing

the consolidation of the petitions

U.S. Court of Appeals for the Ninth Circuit:

United States v. Rundo, No. 19-50189 (argued

November 18, 2020).

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ..........................iii

STATEMENT OF RELATED CASES ......................iii

TABLE OF CONTENTS............................................ iv

TABLE OF AUTHORITIES .................................... viii

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE ................................... 5

Statutory Background ..................................... 8

Procedural Background ................................. 13

REASONS FOR GRANTING THE PETITION ....... 14

The Fourth Circuit’s opinion

splits with the Seventh Circuit

and the United States District

Court for the Central District of

California on the overbreadth of

the Act. ................................................. 14

II.

The

Seventh

Circuit

narrowly concluded that

the

Act

survived

Brandenburg ............................. 15

The United States District

Court for the Central

District of California held

that

the

Act

unconstitutionally

overbroad and struck it

down in its entirety .................. 18

The Fourth Circuit tried to

land

somewhere

between ..................................... 20

The decision below conflicts with

decisions of this Court ......................... 22

The Fourth Circuit is

wrong that the overbreadth

in the statute is “discrete” ........ 22

Even if the Fourth Circuit

correctly identified the only

areas of overbreadth, it was

wrong to sever those

portions from the law ............... 23

III.

And even if the Fourth

Circuit was correct to

sever, it was wrong to

conclude the petitioner’s

plea could be knowing and

voluntary when he did not

know a significant portion

the

law

was

unconstitutional........................ 25

This case is an excellent vehicle

for this Court to address an

important

national

issue

concerning core First Amendment

Rights ................................................... 28

The

Solicitor

General

almost always seeks review

when a court strikes down

as unconstitutional an act

of Congress ................................ 28

This issue is one of

exceptional

national

importance ................................ 29

This case is a good vehicle

to resolve this important

issue .......................................... 33

CONCLUSION ......................................................... 33

vii

APPENDIX:

Published Opinion of

The United States Court of Appeals

For the Fourth Circuit

Re: Affirming the Judgments of the District Court

entered August 24, 2020 ................................ 1a

Judgment of

The United States Court of Appeals

For the Fourth Circuit

entered August 24, 2020 .............................. 53a

Judgment in a Criminal Case of

The United States District Court for

The Western District of Virginia

entered July 26, 2019................................... 55a

Order of

The United States Court of Appeals

For the Fourth Circuit

Re: Denying Petition for Rehearing and

Rehearing En Banc

entered October 5, 2020 ............................... 68a

viii

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Louisiana,

103 U.S. 80 (1880) .......................................... 24

Ashcroft v. ACLU,

542 U.S. 656 (2004) ........................................ 28

Barr v. Am. Ass’n of Political Consultants, Inc.,

140 S. Ct. 2335 (2020) .................................... 23

Blodgett v. Holden,

275 U.S. 142 (1927) ........................................ 28

Bond v. United States,

572 U.S. 844 (2014) ........................................ 24

Bousley v. United States,

523 U.S. 614 (1998) ........................................ 26

Brandenburg v. Ohio,

395 U.S. 444 (1969) ................................ passim

Department of Transp. v. Association of Am. R.Rs.,

135 S. Ct. 1225 (2015) .................................... 28

Faretta v. California,

422 U.S. 806 (1975) ........................................ 27

Henderson v. Morgan,

426 U.S. 637 (1976) ........................................ 26

Hess v. Indiana,

414 U.S. 105 (1973) ........................................ 22

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ............................................ 28

In re Application of Madison,

687 F. Supp. 2d 103 (E.D. NY 2009) ............. 12

In re Shead,

302 F. Supp. 560 (N.D. Cal. 1969) ................. 12

Matal v. Tam,

137 S. Ct. 1744 (2017) .................................... 28

McCarthy v. United States,

394 U.S. 459 (1969) ........................................ 26

McCoy v. Louisiana,

138 S. Ct. 1500 (2018) .............................. 26, 27

Minn. v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) .......................................... 6

Nat’l Mobilization Committee v. Foran,

411 F.2d 934 (7th Cir. 1969) .......................... 15

NEA v. Finley,

524 U.S. 569 (1998) ........................................ 28

Railroad Retirement Bd. v. Alton R. Co.,

295 U.S. 330 (1935) ........................................ 25

Rostker v. Goldberg,

453 U.S. 57 (1981) .......................................... 28

Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995) ........................................ 28

Smith v. O’Grady,

312 U.S. 329 (1941) ........................................ 26

United States v. Alvarez,

567 U.S. 709 (2012) ........................................ 28

United States v. Betts,

No. 2:20-cr-20047 (C.D.Ill. Jul 7, 2020)........... 7

United States v. Brown,

No. 3:20-cr-55 (E.D.Tenn. Jul 7, 2020) ............ 7

United States v. Camil,

497 F.2d 225 (5th Cir. 1974) .......................... 12

United States v. Comstock,

560 U.S. 126 (2010) ........................................ 28

United States v. Daley,

378 F. Supp. 3d 539 (W.D. Va. 2019) .............. 1

United States v. Dellinger,

472 F.3d 340 (7th Cir. 1972) .................. passim

United States v. Gibson,

No. 1:20-mj-6078 (C.D. Ill. 2020) ..................... 7

United States v. Hoffman,

334 F. Supp. 504 (D.D.C. 1971) ............... 12, 15

United States v. Kebodeaux,

570 U.S. 387 (2013) ........................................ 28

United States v. Markiewicz,

978 F.3d 786 (2d Cir. 1992) ........................... 12

United States v. Massey,

No. 1:21-cr-142 (N.D. Ill. March 1, 2021) ........ 7

United States v. Miselis,

972 F.3d 518 (4th Cir. 2020) ............................ 1

United States v. Morrison,

529 U.S. 598 (2000) ........................................ 28

United States v. Peavy,

No. 4:20-mj-6092 (N.D. Ohio June 5, 2020) .... 7

United States v. Rundo,

--F. Supp. 3d--, 2019 WL 11779228

(C.D. Cal. June 3, 2019) ......................... passim

United States v. Stevens,

559 U.S. 460 (2010). ............................... passim

United States v. Williams,

553 U.S. 285 (2008) ............................ 19, 20, 28

Zivotofsky v. Kerry,

135 S. Ct. 2076 (2015) .................................... 28

CONSTITUTIONAL PROVISION

U.S. CONST. amend. I ........................................ passim

xii

STATUTES

18 U.S.C. § 48............................................................ 23

18 U.S.C. § 2101.................................................... 2, 13

18 U.S.C. § 2101(d) ................................................... 29

18 U.S.C. § 2102.................................................... 4, 24

18 U.S.C. § 2102(b) ................................................... 16

18 U.S.C. § 3231.......................................................... 1

18 U.S.C. § 3742.......................................................... 1

28 U.S.C. § 1254(1) ..................................................... 2

OTHER AUTHORITIES

112 Cong. Rec. 17654 (Aug. 8, 1996) ........................ 11

112 Cong. Rec. 17659 (Rep. Edwards). .................... 11

112 Cong. Rec. 17665 (Aug. 8, 1966) ........................ 10

112 Cong. Rec. 17669 ................................................ 12

114 Cong. Rec. 1798 (Feb. 1, 1968) .......................... 10

114 Cong. Rec. 3353 (Feb 19, 1968) ......................... 10

114 Cong. Rec. S2231 (March 5, 1968) ...................... 9

114 Cong. Rec. S2225 (March 5, 1968) ...................... 9

xiii

April 10, 1968 House Record 9535 ........................... 10

Congress & Federal Anti-Riot Proposals,

Pro-Con, 47 Cong. Dig. 99 (1968) ......................... 8, 11

Eileen Brown, We Will Spend 420 Million

Years on Social Media, ZDNet (Fed. 18, 2021),

available at https://www.zdnet.com/article/

we-will-spend-420-million-years-on-socialmedia-in-2021/ .......................................................... 32

https://www.zdnet.com/article/we-will-spend420-million-years-on-social-media-in-2021/ ............ 32

H.R. 2516, 90th Cong., Amdt. No. 589 ....................... 9

Lepore, J., The History of the “Riot” Report,

The New Yorker (June 22, 2020), available at

https://www.newyorker.com/magazine/2020/06

/22/the-history-of-the-riot-report ................................ 8

Letter to the Hon. Nancy Pelosi from Acting

Solicitor General Elizabeth Prelogar (Feb. 18,

2021)

available

https://www.justice.gov/oip/foia-library/osg530d-letters/us_v_miselis_530d/download................. 7

Pew Research Center Report 2019, available

at https://www.pewresearch.org/internet/factsheet/social-media/.................................................... 28

Report of the National Advisory Commission

on Civil Disorder (1968) available at

https://www.ncjrs.gov/pdffiles1/Digitization/80

73NCJRS.pdf .............................................................. 8

xiv

Zalman, Marvin. The Federal Anti-Riot Act

and Political Crime: The Need for Criminal

Law Theory, 20 Villanova L. Rev ............................... 8

PETITION FOR WRIT OF CERTIORARI

Petitioner

Michael

Miselis

respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fourth Circuit.

OPINIONS BELOW

The opinion of the United States Court of

Appeals is reported at United States v. Miselis, 972

F.3d 518 (4th Cir. 2020), and reprinted in Appendix

1a. The order denying the petition for rehearing and

rehearing en banc is unpublished and printed at

Appendix 68a. The district court’s opinion rejecting a

facial challenge to the Act is reported at United States

v. Daley, 378 F. Supp. 3d 539 (W.D. Va. 2019). The

Seventh Circuit’s opinion rejecting a facial challenge

to the Act is reported at United States v. Dellinger,

472 F.3d 340 (7th Cir. 1972). The United States

District Court for the Central District of California’s

decision striking down the entire Act as

unconstitutional is reported at United States v.

Rundo, --F. Supp. 3d--, 2019 WL 11779228 (C.D. Cal.

June 3, 2019).

JURISDICTION

The district court in the Western District of

Virginia had jurisdiction over this federal criminal

case pursuant to 18 U.S.C. § 3231. The court of

appeals had jurisdiction over Petitioner’s appeal

pursuant to 18 U.S.C. § 3742. That court issued its

opinion and judgment on August 24, 2020. A petition

for rehearing was denied on October 5, 2020.

The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

18 U.S.C. § 2101 (The Anti-Riot Act) provides:

(a) Whoever travels 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-(1) to incite a riot; or

(2) to organize, promote,

participate in, or carry on a riot; or

encourage,

(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) of

this paragraph-Shall be fined under this title, or imprisoned not

more than five years, or both.

(b) In any prosecution under this section, proof

that a defendant engaged or attempted to engage

in one or more of the overt acts described in

subparagraph (A), (B), (C), or (D) of paragraph (1)

of subsection (a)2 and (1) has traveled in interstate

or foreign commerce, or (2) has use of or used any

facility of interstate or foreign commerce,

including but not limited to, mail, telegraph,

telephone, radio, or television, to communicate

with or broadcast to any person or group of persons

prior to such overt acts, such travel or use shall be

admissible proof to establish that such defendant

traveled in or used such facility of interstate or

foreign commerce.

merits under the laws of any State shall be a bar

to any prosecution hereunder for the same act or

acts.

(d) Whenever, in the opinion of the Attorney

General or of the appropriate officer of the

Department of Justice charged by law or under the

instructions of the Attorney General with

authority to act, any person shall have violated

this chapter, the Department shall proceed as

speedily as possible with a prosecution of such

person hereunder and with any appeal which may

lie from any decision adverse to the Government

resulting from such prosecution.

(e) Nothing contained in this section shall be

construed to make it unlawful for any person to

travel in, or use any facility of, interstate or foreign

commerce for the purpose of pursuing the

legitimate objectives of organized labor, through

orderly and lawful means.

(f) Nothing in this section shall be construed as

indicating an intent on the part of Congress to

prevent

any

State,

any

possession

Commonwealth of the United States, or the

District of Columbia, from exercising jurisdiction

over any offense over which it would have

jurisdiction in the absence of this section; nor shall

anything in this section be construed as depriving

State and local law enforcement authorities of

responsibility for prosecuting acts that may be

violations of this section and that are violations of

State and local law.

18 U.S.C. § 2102 provides the following definitions:

(a) As used in this chapter, the term “riot” means

a public disturbance involving (1) an act or acts of

violence by one or more persons part of an

assemblage of three or more persons, which act or

acts shall constitute a clear and present danger of,

or shall result in, damage or injury to the property

of any other person or to the person of any other

individual or (2) a threat or threats of the

commission of an act or acts of violence by one or

more persons part of an assemblage of three or

more persons having, individually or collectively,

the ability of immediate execution of such threat

or threats, where the performance of the

threatened act or acts of violence would constitute

a clear and present danger of, or would result in,

damage or injury to the property of any other

person or to the person of any other individual.

(b) As used in this chapter, the 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

The First Amendment of the Constitution states:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press, or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

STATEMENT OF THE CASE

At a time of deep social unrest, this court of

appeals decision—severing and excising significant

parts of a law that criminalizes speech and actions

taken in connection with an intended riot—warrants

immediate review. This Court normally grants

certiorari when a lower court has invalidated a

federal statutory provision on constitutional grounds,

and that customary approach is especially

appropriate here where the opinion creates a threeway circuit split with the Seventh Circuit which

upheld the law in its entirety, and the United States

District Court for the Central District of California,

which struck it down completely.

The lower courts, and the public, need guidance

from this Court in determining the line between

protected speech and felony incitement. The decision

below should be reviewed because the lower courts

are split on the constitutionality of the Act, because

decision below is incorrect, and because the

Department of Justice has departed from its

longstanding policy of seeking certiorari in cases like

this to strategically preserve the use of this overbroad

law in other circuits. The Fourth Circuit correctly

recognized that the Act’s criminalization of actions

taken with the intent of “encouraging” or “promoting”

a riot ran afoul of Brandenburg v. Ohio, 395 U.S. 444

(1969) (per curiam). The Fourth Circuit was also

correct that the statute’s definition of inciting,

organizing, participating in, or carrying on a riot was

constitutionally infirm because it criminalized the

“urging” of a riot and also expressly included within

its broad reach advocacy of the rightness of violence.

But the court erred by not going further, like the

United States District Court for the Central District

of California, because the Act as a whole fails to

require any imminence of violence.

Even assuming the Fourth Circuit was correct

in its limited delineation of the law’s constitutional

problems, the court was wrong to create an entirely

new law by severing and excising away the

“expressive” portions of the law and leaving, in its

view, a “conduct-focused” statute, that in practice

lacks any meaningful line between expression and

conduct. This Court has been clear that line-editing a

law in this way is a “serious invasion of the legislative

domain.” United States v. Stevens, 559 U.S. 460, 481

(2010). “The inquiry into whether a statute is

severable is essentially an inquiry into legislative

intent.” Minn. v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 191 (1999). Yet the Fourth

Circuit did not consider or refer to any of the

legislative history that establishes that the specific

intent of this law was to stop riots before they started

by criminalizing pre-riot speech.

Resolution of the questions presented is a

matter of tremendous national importance. After the

successful prosecution of the petitioner, the Act has

been used to prosecute numerous individuals in

connection with the protests and riots during the

summer of 2020 following the death of George Floyd.

Many of these prosecutions included individuals who

used social media to encourage people to take to the

streets.1 Further, in explaining to Congress why it is

choosing not to seek certiorari in this case, the Acting

Solicitor General admitted that “The Department of

Justice does not agree with certain aspects of the

Fourth Circuit’s decision holding that portions of the

Anti-Riot Act violate the First Amendment, and we

remain committed to investigating and prosecuting

individuals and groups who, like the defendants in

this case, pose a threat to public safety and national

security by engaging in ‘violent confrontations’ during

protests.” 2 The continuing threat of prosecution

under this overbroad law casts a chilling shadow on

1 United States v. Brown, No. 3:20-cr-55 (E.D.Tenn. Jul

7, 2020) (allegedly used snapchat to identify stores people should

raid); United States v. Gibson, No. 1:20-mj-6078 (C.D. Ill. 2020)

(allegedly used Facebook live to coordinate a riot); United States

v. Peavy, No. 4:20-mj-6092 (N.D. Ohio June 5, 2020) (arrested

after Facebook posts about rioting but before participating in

any riot); United States v. Massey, No. 1:21-cr-142 (N.D. Ill.

March 1, 2021) (charged with posting videos and messages on

Facebook on August 9, 2020 calling for people to travel to

Chicago and participate in looting); United States v. Betts, No.

2:20-cr-20047 (C.D.Ill. Jul 7, 2020) (allegedly used Facebook to

incite a riot).

Letter to the Hon. Nancy Pelosi from Acting Solicitor

General Elizabeth Prelogar (February 18, 2021) available at

https://www.justice.gov/oip/foia-library/osg-530d-letters/us_v_

miselis_530d/download.

legitimate constitutional speech, and amplifies the

need for this Court to weigh in now given the lack of

uniform application of the Act throughout the

country.

Statutory Background

Congress passed the Act as part of the Fair

Housing Act of 1968. During the 1960s, Congress

considered several different versions of anti-riot

legislation to respond to numerous racially-charged

riots that broke out in cities across the country.3 The

congressional record reflects a core ideological conflict

over whether riots were caused by outside agitators,

or by poverty and racial inequality. The National

Advisory Commission on Civil Disorders appointed by

President Lyndon B. Johnson issued a report on

February 29, 1967 attributing responsibility for the

riots to racial division and poverty, implicating the

role of “white society” and “white institutions” for

creating and sustaining the divide. 4 The Report

recommended addressing the root causes of the riots

Comprehensive overviews of the legislative history

may be found in the partial dissent in United States v. Dellinger,

472 F.3d at 410-11, as well as in Congress & Federal Anti-Riot

Proposals, Pro-Con, 47 Cong. Dig. 99 (1968) (hereinafter “AntiRiot Pro Con”) and Zalman, Marvin. The Federal Anti-Riot Act

and Political Crime: The Need for Criminal Law Theory, 20

Villanova L. Rev. 5-6 at 897. These two articles were included as

Attachments to the Reply Brief in the record below. See No. 194551, dkt #61.

Report of the National Advisory Commission on Civil

Disorder (1968) available at https://www.ncjrs.gov/pdffiles1/

Digitization/8073NCJRS.pdf; see also Lepore, J., The History of

the “Riot” Report, The New Yorker (June 22, 2020), available at

https://www.newyorker.com/magazine/2020/06/22/the-historyof-the-riot-report.

through multi-billion dollar expenditures of Federal

funds to address low-income housing, improved

education, employment assistance, and public

welfare.

Backlash was swift. The Attorney General’s

warning that “Federal legislation, if enacted, should

be precisely drafted, with a clear definition of all

operative terms, so as to preserve scrupulously the

constitutional rights of all Americans” was ignored.5

Instead of relying on prior versions of anti-riot

legislation which had been debated for months and

awaited Senate action, Senators Strom Thurmond

and Frank Lausche introduced an expansive new

anti-riot proposal on the floor of the Senate on March

4, 1968 that ultimately became the Act. 6 Several

Senators objected to the hasty process and the fact

they were asked to vote for a bill that “comes right off

the top of the head without quite knowing what its

implications are and what it will do.”7 But the Senate

passed the bill anyway on March 11, 1968, with only

minor amendments to the version first proposed a

week earlier. It was signed into law within days of the

assassination of Dr. Martin Luther King, Jr.

The final product was substantially and

deliberately broader than the legislation proposed in

previous years and the alternate bill proposed in 1968

by the Johnson Administration. For example, the

final bill included new language that incitement and

other prohibited activities included the “advocacy of

114 Cong. Rec. S2231 (March 5, 1968).

H.R. 2516, 90th Cong., Amdt. No. 589.

114 Cong. Rec. S2225 (March 5, 1968).

any act of acts of violence or assertion of the rightness

of, or the right to commit, any such act or acts.”

Likewise, the definition of “riot” was expanded well

past prior definitions to include any “public

disturbance” with three or more people where there

was a mere threat of violence that could constitute a

“clear and present danger” to person or property.

The Act was deliberately broad because

Congress wanted to target outside agitators who were

perceived to have come into cities, stirring up

discontent with speeches and rhetoric, and then

leaving a crowd primed for a future riot.8 Debate on

each iteration of anti-riot legislation shows a focus on

8 See, e.g., 112 Cong. Rec. 17665 (Aug. 8, 1966) (Rep.

Taylor) (Communists were “trying to take advantage of the civil

rights movement” by going “from city to city and State to State

to promote riots and violence and stir up race against race and

class against class”); id. at 17653 (Rep. Harsha) (“known among

members of the Federal Bureau of Investigation that certain

Communist groups are responsible”); id. at 17643 (Rep.

Edwards) (“Communists are involved in these riots”); Id. at

17666 (Rep. Dickinson) (“It should go far in preventing a Stokely

Carmichael from whipping his supporters into a frenzy”); 114

Cong. Rec. 1798 (Feb. 1, 1968) (Sen. Talmadge) (“Rap Brown and

Stokely Carmichael, who go from city to city, day to day,

fomenting strife and riots”); 114 Cong. Rec. 3353 (Feb 19, 1968)

(Sen. Eastland) (introducing the 1967 House Bill as part of the

Internal Security Act of 1968 and describing riot provision as

targeting the “teaching or advocating the forceful, violent

overthrow of government, and against the activities of

Communist organizers”); April 10, 1968 House Record 9535

(Rep. Tuck) (King “openly advocated nonviolence. . . [but]

fomented discord and strife between the races” and “[v]iolence

followed in his wake wherever he went”); id. at 9574 (Rep.

Fisher)) (King plotted with H. Rap Brown and Stokely

Carmichael “the self-professed revolutionary who globetrotted

across the Communist world from Havana to Hanoi last year”

speech and the expression of ideas that foment later

violence—not on the acts of violence themselves. The

Congressional record is filled with words like

preaching, promoting, spewing forth, and ranting. 9

One Congressman summed it up directly: “preceding a

riot, an outside agitator has appeared in a community

to harangue an audience member concerning their

grievances . . . often the speeches of these agitators

have been criminally inflammatory . . . .”10

In contrast, Congress intended for the actual

rioting violence to be prosecuted by the states.

Congress acknowledged that the “keeping of the

public peace in our cities has always been

traditionally a matter of local control”11 and that it is

not “proper for the Federal Government to assume

responsibility for criminal law which is entirely

intrastate when there is not a shred of evidence any

one of the 50 states has had a breakdown or law and

order or that there has been a reluctance on the part

9 In this vein, one Congressman suggested that the Vice

President was guilty of “encouraging” riots, along with the civil

rights leaders who “travel[ ] form one end of this country to the

other to incite and direct riots….piously preach[ing] nonviolence

while at the same time they encourage violence.” 112 Cong. Rec.

17654 (Aug. 8, 1996) (Rep. Martin). Other supporters likewise

cited the “group of malcontents and would be revolutionaries

. . . [t]hey preach and promote a nightmarish, nihilist tide of

thought” and described them as “professional agitators” who

“spew forth a cant of hate and evil disobedience.” Anti-Riot ProCon at 108. “We see them on our television screens; we hear their

rantings on radio, we see their pictures in the newspapers and

national magazines.” Id.

10 Anti-Riot Pro-Con at 126.

112 Cong. Rec. 17659 (Rep. Edwards).

of the states to enforce laws against this condition.”12

Proponents of the bill explained that the law was not

focused on the “acts of violence” themselves but the

events that preceded the riots.13 For this reason, the

Act contained an express carve-out to clarify that it

was not taking jurisdiction away from the states.

Prior to the prosecution of the petitioner, only

one prosecution under the law had ever produced a

conviction not overturned on appeal. 14 Instead, the

more typical use of the law has been to obtain search

warrants or compel grand jury testimony where no

charges ever resulted. 15 The number of times this

Id. at 17669 (Rep. Corman).

13 For example, the House Committee on the Judiciary

Majority Report explained of the 1967 House Bill that “riot

control, riot prevention, and the punishment of rioters” generally

rested with State and local police, but this bill focused on “those

who agitate and incite such violence by the use of facilities in

interstate commerce.”

See United States v. Markiewicz, 978 F.3d 786 (2d Cir.

1992) (defendants also convicted of numerous other offenses

including arson, theft, witness tampering and perjury). Compare

United States v. Hoffman, 334 F. Supp. 504, 509 (D.D.C. 1971)

(charges dismissed on government motion); Dellinger, 472 F.3d

340 (Chicago Seven prosecution overturned on appeal); United

States v. Camil, 497 F.2d 225, n.3 (5th Cir. 1974) (referencing

“Gainesville Six” prosecution of anti-war protesters at 1972

Republican National Convention where all defendants were

acquitted).

See, e.g., United States v. McNamara-Harvey, No.

2:10-cr-219 (E.D. Penn.), In re Application of Madison, 687

F.Supp.2d 103 (E.D. NY 2009); In re Shead, 302 F. Supp. 560

(N.D. Cal. 1969).

broad law has been used in these ways is knowable

only to the government.16

Procedural Background

The petitioner was indicted out of the Western

District of Virginia for one count of violating of the

Act, 18 U.S.C. § 2101, and a second count of

conspiracy to violate the same. App. 7a-8a. Less than

two weeks after the petitioner and several others

were arrested for these charges, four other men were

arrested on a criminal complaint filed in the Central

District of California alleging the same two offenses.

See Rundo, 2019 WL 11779228 at *1. All of these

individuals were alleged to be part of the Rise Above

Movement (“RAM”), a group that self-identified as

white nationalist. App. 4a-5a. The Virginia

defendants comprised the half of the group who

travelled to Charlottesville, Virginia, to participate in

the Unite the Right Rally on August 12, 2017, with

interstate travel cited as the basis for the Act. App.

5a. The RAM members who did not attend the Unite

the Right Rally were instead indicted in California,

alleging their use of the facilities of interstate

commerce (the Internet, telephone, and a credit card)

as the hook under the Act. See Rundo, 2019 WL

11779228 at *1

In each court the defendants challenged the

facial constitutionality of the Act, with opposite

results. After the district court in Virginia denied a

motion to dismiss, ruling the law was constitutional,

the petitioner below pled guilty to Count One of the

The government declined to provide this information

at the request of counsel, or in response to Freedom of

Information queries.

indictment, conspiracy to violate the Act. App. 8a. In

a written plea agreement, the petitioner reserved his

right to appeal the constitutionality of the Act. Id. The

petitioner also entered into a written stipulation of

fact. App. 51a. In June of 2019, the court in the

Central District of California ruled that the Act was

facially unconstitutional it its entirety, dismissing the

indictment. Rundo, 2019 WL 11779228.

The Fourth Circuit concluded that portions of

the Act were overbroad in violation of the First

Amendment, but that the record showed the

petitioner’s conviction rested on the constitutional

part of the Act that remained, so ultimately affirmed

the decision below. App. 50a-52a.

REASONS FOR GRANTING THE PETITION

The Fourth Circuit’s opinion splits with

the Seventh Circuit and the United States

District Court for the Central District of

California on the overbreadth of the Act.

The Act was passed in 1968, one year before

this Court ruled that for advocacy to qualify as

incitement and fall outside of the protection of the

First Amendment it must be “directed to inciting or

producing imminent lawless action” and be “likely to

incite or produce such action.” Brandenburg, 395 U.S.

at 447 (concluding mere advocacy of the rightness of

violence was protected speech). In arriving at their

vastly

different

conclusions

about

the

constitutionality of the Act in light of Brandenburg,

the lower courts have struggled and divided on the

interpretation of numerous aspects of the Act,

including: (1) the overt act requirement; (2) the

appropriate meaning of “organize,” “promote,”

“encourage,” and “urge”; and (3) the Act’s specific

inclusion of the “advocacy of any act or acts of violence

or assertion of the rightness of, or the right to commit,

any such act or acts”.

The Seventh Circuit narrowly

concluded that the Act survived

Brandenburg.

The constitutionality of the Act was first

considered in a cluster of three related cases all

stemming from the prosecution of the “Chicago

Seven”. Initially the constitutionality of the Act was

raised by in a declaratory action that the Seventh

Circuit readily rejected without lengthy analysis.

Nat’l Mobilization Committee v. Foran, 411 F.2d 934

(7th Cir. 1969). A district court in the District of

Columbia then relied on this decision to affirm the

constitutionality of the law in a challenge in a related

challenge to a search warrant. United States v.

Hoffman, 334 F. Supp. 504 (D.D.C. 1971). After the

Chicago Seven were ultimately prosecuted and

convicted, the court took up a complete review of the

statute in Dellinger, ultimately over-turning the

convictions but splitting 2-1 on the constitutionality

of the law. 472 F.2d 340.

The Dellinger majority started with the

structure of the statute and interpreted the law as

requiring an intent to commit one of the four listed

categories, and that the law required an overt act that

“must itself by a fulfillment of one of the elements

listed . . . and not merely a step toward one such

element.” Id. at 361. In reaching this conclusion, the

majority explained that “[i]f we could be persuaded

that the overt act . . . could be a speech which only was

a step toward one of the elements of (A)-(D), taking

those merely as goals, we would be unable to conclude

that the statute required an adequate relation

between speech and action.” Id. at 362. But the court

elected to interpret “for any purpose specified” as

“equivalent to fulfillment of any purpose listed and

therefore concluded that the statute had “an adequate

relation between expression and action.” Id.

Turning to Brandenburg’s requirement that

speech must be likely to result in imminent violence

before it falls outside of the umbrella of First

Amendment protection, the majority concluded that

while there were arguments that the verbs “organize,

promote, encourage” and “urge” had an “insufficient

relationship” to “propelling action,” that the

“threshold definition of all [of these] categories as

‘urging or instigating’ puts a sufficient gloss of

propulsion [to action] on the expression described.” Id.

at 361. The court also concluded that the definitions

Congress provided in § 2102(b) for “to incite a riot”

and “to organize, promote, encourage, participate in,

or carry on a riot” did not include “advocacy of any act

or acts of violence or assertion of the rightness of, or

the right to commit, any such act or acts,” while

acknowledging that it could be read the other way. Id.

at 363. But because the court considered “any

possibility that prosecution would be undertaken in

reliance on defendants’ proffered construction of the

challenged phrase as minimal,” the court was

satisfied that there was no overbreadth. Id. at 364.

In a partial dissent, the third judge reviewed

the legislative history of the law and disagreed with

the conclusion that the Act was constitutional. Id. at

416 (“I would hold that the statute was not drawn

sufficiently narrowly to avoid the conflict” between

“congressional power and individual rights” under the

First Amendment). Notably, even the majority

expressed significant hesitation:

We do not pretend to minimize the first

amendment problems presented on the face of

this statute. In one hypothetical application,

the statute could result in punishment of one

who, having traveled interstate, or used the

mail, with intent to promote a riot, attempted

to make a speech or circulate a handbill for the

purpose of encouraging three people to riot.

Arguably the statute does not require that the

speech, if made, or the handbill, if circulated,

succeed in any substantial degree in

encouraging the audience to riot. Arguably a

frustrated attempt to speak or circulate would

not achieve the constitutionally essential

relationship with action in any event. Arguably

the statute does not require that a speech or

handbill succeed in producing a riot or bringing

the persons addressed to the brink of a riot,

prevented only by some intervening and

superseding force, and arguably no less degree

of propelling of action by speech or handbill will

suffice, even though intent to succeed must also

be proved. Although we reject these

arguments, in part as constructions of the

statute, and in part as grounds for declaring it

void, we acknowledge the case is close.

Id. at 362.

The United States District Court for

the Central District of California

held

that

the

Act

unconstitutionally overbroad and

struck it down in its entirety.

In the companion prosecution to this one, the

United States District Court for the Central District

of California held that the Act was substantially

overbroad and unconstitutional. Rundo, --F. Supp.

3d--, 2019 WL 11779228. The court noted the law

“covers far more than acts of violence,” particularly

noting that it “criminalizes activities that precede any

violence, so long as the individual acts with the

required purpose of intent” and that it “reaches

speech and expressive conduct.” Id. at *2. The court

further explained that the Act “does not just

criminalize the behavior of those in the heat of a riot”

but “criminalizes acts taken long before any crowd

gathers, or acts that have only an attenuated

connection to any riot.” Id. at *3. By way of example,

the court explained “a defendant could be convicted

for renting a car with a credit card, posting about a

political rally on Facebook, or texting friends about

when to meet up.” Id.

The district court then noted that under the

law “it is not a crime merely to advocate ideas” but “it

may still be a crime to advocate acts of violence or

assert the rightness of, or the right to commit, any

such acts.” Id. More fundamentally, however, the

court found that the Act “has no imminence

requirement” and that it “does not require that

advocacy be directed toward inciting or producing

imminent lawless action” and instead “criminalizes

advocacy even where violence or lawless action is not

imminent.” As a result, it “eviscerates Brandenburg’s

protections of speech.” Id. at *4.

The district court observed that the definition

of “riot” did not add any imminence of violence

because the riot was always “some event in the

future” distinct from the overt act made for “the

purpose of urging or instigating that future event.” Id.

For this reason someone who “posts on social media,

urging others to attend a rally” with the “purpose of

promoting or organization a riot” has violated the law

even if “the rally is six months away” and therefore

“there is no imminent lawless action.” Id. Put

succinctly, “[e]ven if the riot itself would eventually

pose a clear and present danger, the overt act does

not.” Id. For this same reason, the terms “incite,”

“organize,” “promote,” and “encourage” could not

satisfy the imminence requirement because even if

they “imply some degree of action” there is “no

requirement that the organizing or promoting be

directed towards imminent violence or lawless

action—that event, for instance, could be months

away.” Id. at *5.

Finally, the court concluded that the statute

criminalized a substantial amount of protected

expressive activity in relation to the statute’s

legitimate sweep because the act “does not focus on

the

regulation

violence”

but

“pre-riot

communications and actions” while “sweep[ing] in a

wide swath of protected expressive activity.” Id. citing

United States v. Williams, 553 U.S. 285, 292 (2008).

And the danger of a “chilling effect is heightened by

its context” because rioting “in history and by nature,

almost invariably occurs as an expression of political,

social, or economic reactions, if not ideas.” Id. quoting

Dellinger, 472 F.3d at 359.

The Fourth Circuit tried to land

somewhere in between.

The Fourth Circuit concluded that the Act had

several areas of substantial overbreadth. App. 4a. In

particular, the court found that the Act’s inclusion of

actions intended to “encourage,” and “promote” others

to riot did not have a requisite relation to imminent

violence under Brandenburg. App. 26a-30a. On the

other hand, the court that the intent to “incite,”

“organize,” “participate in,” or “carry on” a riot had a

sufficient link to action. Id. To reach this conclusion,

the court significantly amended the definitions

Congress provided for these same terms:

As used in this chapter, the 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.

App. 36a (demonstrating changes to Act). In so

holding, the court agreed that the statute as drafted

included advocacy “of the right to commit” violence as

a prohibited activity. App. 33a-34a. Nonetheless, the

court found these were all “discrete instances of

overbreadth,” that the statute was “capable of

functioning independently,” and that “such minimal

severance is consistent with Congress’s basic

objective in enacting the Anti-Riot Act.” App. 39a.

The Fourth Circuit explained that it had

agreed that the “overt-act element” and the

“definition of riot” were overbroad, “these elements of

the statute might prove difficult to sever.” App. 43a.

But it did not. Id. In particular, the court concluded

that both of the parties, and the Dellinger court, had

incorrectly interpreted the structure of the statute

and the overt act requirement. Instead, the Act “was

drafted as an attempt offense, of which it bears all the

classic hallmarks, rather than a commission offense.”

App. 23a. While noting that “we’re not aware of

another instance in which Congress has sought to

proscribe the attempt to engage in unprotected

speech,” the court did not see any bar to such

legislation. App. 24a. Cf. Dellinger, 472 F.2d at 362

(“[i]f we could be persuaded that the overt act . . . could

be a speech which only was a step toward one of the

elements of (A)-(D), taking those merely as goals, we

would be unable to conclude that the statute required

an adequate relation between speech and action”).

The court also found no problem with the

definition of “riot.” Acknowledging that the “clearand-present-danger

test”

was

displaced

Brandenburg from the prevailing incitement test, the

court nevertheless concluded that the test set out in

the definition of riot “doesn’t relate to the same things

under the Anti-Riot Act as it did under the First

Amendment.” App. 34a.

Finally, the court concluded that the

stipulation of fact the petitioner agreed to as part of

his guilty plea hearings “establish[ed] conclusively

that the defendants’ substantive offense conduct falls

under the statute’s surviving purposes” so therefore

his “conviction[ ] must stand.” App. 51a.

II.

The decision below

decisions of this Court.

conflicts

with

The Fourth Circuit is wrong that

the overbreadth in the statute is

“discrete”.

After Brandenburg, it is clear that unprotected

speech requires both the imminence and likelihood of

violence. 395 U.S. at 447. In addition, “the mere

abstract teaching . . . of the moral propriety or even

moral necessity for a resort to force and violence, is

not the same as preparing a group for violent action

and steeling it to such action.” Id. at 448; see also Hess

v. Indiana, 414 U.S. 105, 109-10 (1973) (incitement

requires the specific intent “to produce . . . imminent

disorder and a “tendency to lead to violence” is not

enough).

The opinion below was wrong to conclude that

there was a sufficient threat of imminent violence

from any of the Act’s intended purposes. Because

there is no requirement that the intended riot take

place at all, let alone within a close temporary

proximity to the travel or use of commerce, the Act is

overbroad in every instance. The Act “has no

imminence requirement.” Rundo, --F. Supp. 3d--,

2019 WL 11779228 at *4. Nothing in the Act requires

“that advocacy be directed toward inciting or

producing imminent lawless action.” Id. Instead, the

Act “criminalizes advocacy even where violence or

lawless action is not imminent.” Id. As a result, it

“eviscerates Brandenburg’s protections of speech.” Id.

The definition of “riot” is also overbroad, infecting the

interpretation of the entire Act.

Even if the Fourth Circuit correctly

identified the only areas of

overbreadth, it was wrong to sever

those portions from the law.

The opinion below directly conflicts with

Stevens where this Court struck down the entirety of

a similarly sweeping statute on First Amendment

overbreadth grounds. 559 U.S. 460. Like the Act, the

overbreadth in the animal cruelty statute examined

in Stevens was central to the law. Id. at 474-75. Nor

did the overbreadth in that statute appear only in an

amendment to an otherwise long-standing and valid

statutory scheme. Id. Compare Barr v. Am. Ass’n of

Political Consultants, Inc., 140 S. Ct. 2335 (2020)

(plurality opinion) (concluding severability supported

by fact that the unconstitutional portion of the statute

had been added as an amendment to an otherwise

long-standing and well-operating statutory scheme).

And the law examined in Stevens—like the Act—

lacked a severability clause. Id.

For these reasons, when this Court concluded

that only two words, “wounded” and “killed,” were

overbroad in a clause that banned “any . . . depiction”

in which “a living animal is intentionally maimed,

mutilated, tortured, wounded, or killed,” the entire

statute had to be struck down. Id. at 474-75 (citing 18

U.S.C. § 48). This result was required to avoid

“rewrite[ing] a . . . law to conform it to constitutional

requirements” because “doing so would constitute a

serious invasion of the legislative domain.” Id. at 481

(cleaned up, internal quotation omitted).

The Fourth Circuit instead: (1) deleted two

verbs, “promote,” and “encourage” from a list of five

expressive verbs, and then (2) struck down half of the

specific definitions Congress provided for the

remaining three verbs from that list (“organize,”

“participate in,” and “carry on”), as well as for the

separately listed prohibited purpose to “incite.” The

right result under this Court’s precedent was outright

invalidation. The definitions in Section 2102

criminalize speech that is not incitement or a true

threat and this infects the entire Act. See Allen v.

Louisiana, 103 U.S. 80, 83 (1880) (allowing severance

“if the [constitutional and unconstitutional] parts are

wholly independent of each other”).

This is particularly the case where the

legislative history makes plain that Congress would

not have enacted the version of the law left in place

by the Fourth Circuit. The court below agreed that

Congress had specifically intended to criminalize the

expression of beliefs about the right to commit acts of

violence—then promptly cut that language from the

statute. The court otherwise ignored the legislative

history and origins of the Act which plainly did not

focus “on the regulation of violence” but instead on

“pre-riot communications and actions.” Rundo, --F.

Supp. 3d--, 2019 WL 11779228 at *5. Basic

presumptions of federalism prohibit this dramatic

rewrite which leaves in place a law that proscribes

nothing more than assault and vandalism—

quintessential local crimes that Congress left to the

States. See Bond v. United States, 572 U.S. 844, 858

(2014) (“Perhaps the clearest example of traditional

state authority is the punishment of local criminal

activity”).

The enacting Congress expressly sought to

target the speech and expressive conduct of outside

agitators who were promoting, encouraging, and

urging through advocacy of acts of violence and

asserting the rightness of and the right to commit an

act or act of violence. The solution below—removing

the speech verbs that have the closest fit to targeting

pre-riot communications and activities—excludes

from the reach of the Act the majority of the people

Congress declared to be the malevolent force behind

the riots it was trying to stop. The result of severance

in this case is judicially-forbidden rewriting of a

statute that “give[s] it an effect altogether different

from that sought by the measure viewed as a whole.”

Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330,

362 (1935). And the chilling effect on speech remains

even with the reduced version of the Act because the

government

can

investigate

and

prosecute

conspiracies to violate what the Fourth Circuit has

now classified a mere attempt statute. The right

result under this Court’s precedent is invalidation of

the entire Act.

And even if the Fourth Circuit was

correct to sever, it was wrong to

conclude the petitioner’s plea could

be knowing and voluntary when he

did not know a significant portion

of the law was unconstitutional.

During his guilty plea colloquy with the district

court, the petitioner was informed of the elements of

the Act. 17 He was not informed or advised that a

significant portion of the law to which he was

pleading was unconstitutional. A defendant has a

fundamental autonomy interest in knowing, before

surrendering himself to years behind bars, every

element that the Government would have to prove

against him at trial. A violation of that interest, in

and of itself, necessitates relief.

“The first and most universally recognized

requirement of due process” is that every defendant

receive “real notice of the true nature of the charge

against him.” Henderson v. Morgan, 426 U.S. 637, 645

(1976) (quoting Smith v. O’Grady, 312 U.S. 329, 334

(1941)); see also Bousley v. United States, 523 U.S.

614, 618 (1998); McCarthy v. United States, 394 U.S.

459, 466 (1969). That being so, this Court held in

Henderson that where a trial court failed at a plea

colloquy to inform the defendant of an intent element

regarding the charge, accepting the defendant’s guilty

plea violated the Due Process Clause’s requirement

that guilty pleas be knowing and voluntary. 426 U.S.

at 646. Furthermore, the Henderson Court held that

the violation of this constitutional principle required

the defendant’s guilty plea to be set aside, even

“assum[ing] . . . that the prosecutor had overwhelming

evidence of guilt available.” Id. at 644.

A guilty plea where a defendant was not

advised of the accurate elements of the offense

contravenes a defendant’s interest in “mak[ing] the

fundamental choices about his own defense.” McCoy

v. Louisiana, 138 S. Ct. 1500, 1511 (2018). In McCoy,

United States v. Miselis, No. 3:18-cr-25, dkt #207

(W.D. Va.) (Transcript of Guilty Plea hearing)

the Court held that a violation of a defendant’s

constitutional right to decide whether to admit guilt

at trial constitutes structural error. It explained that

even when counsel believes “that confessing guilt

offers the defendant the best chance to avoid the

death penalty,” a defendant must have the autonomy

to “insist that counsel refrain from admitting guilt.”

Id. at 1505. Similarly, in Faretta v. California, 422

U.S. 806 (1975), the Court held that a defendant

“must be free personally to decide whether in his

particular case counsel is to his advantage,” even if

refusing counsel is “ultimately to his own detriment.”

Id. at 834. These holdings reflect the Framers’ belief

in “the inestimable worth of free choice.” Id. If, as

McCoy and Faretta hold, a deprivation of a

defendant’s right to decide how he will put forward

his defense impinges a defendant’s autonomy, it

necessarily follows that an impingement of a

defendant’s right to determine whether he puts

forward a defense likewise violates a vital autonomy

interest. Before giving up his liberty and agreeing to

spend years in prison, the petitioner had the right to

be accurately informed of what the Government

would have to prove at a jury trial. Only with that

complete information could the petitioner make a

“choice on whether to plead guilty” that truly

respected his autonomy.

III.

This case is an excellent vehicle for this

Court to address an important national

issue concerning core First Amendment

Rights.

The Solicitor General almost always

seeks review when a court strikes

down as unconstitutional an act of

Congress.

This Court often grants certiorari “in light of

the fact that a Federal Court of Appeals has held a

federal statute unconstitutional,” even in the absence

of a circuit conflict. United States v. Kebodeaux, 570

U.S. 387, 391 (2013); see also, e.g., Matal v. Tam, 137

S. Ct. 1744 (2017); Zivotofsky v. Kerry, 135 S. Ct. 2076

(2015); Department of Transp. v. Association of Am.

R.Rs., 135 S. Ct. 1225 (2015); United States v. Alvarez,

567 U.S. 709 (2012); Holder v. Humanitarian Law

Project, 561 U.S. 1 (2010); United States v. Comstock,

560 U.S. 126 (2010); United States v. Stevens, 559

U.S. 460 (2010); Williams, 553 U.S. 285; Ashcroft v.

ACLU, 542 U.S. 656 (2004); United States v.

Morrison, 529 U.S. 598 (2000); NEA v. Finley, 524

U.S. 569 (1998); Rubin v. Coors Brewing Co., 514 U.S.

476 (1995).

That practice is consistent with the Court’s

recognition that judging the constitutionality of a

federal statute is “the gravest and most delicate duty

that th[e] Court is called upon to perform.” Rostker v.

Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v.

Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes,

J.)). Here, there is already clear circuit disagreement,

increasing the importance of review in this case. The

fact that the Department of Justice has decided not to

file a petition for a writ of certiorari in this case does

not change this Court’s precedent that helps ensure

the uniformity of federal laws throughout the land.18

This issue is one of exceptional

national importance.

This Court’s review is particularly appropriate

because the Act stands at the intersection between a

nation in political turmoil and the First Amendment

which guarantees the freedoms to speak and

assemble. The continuing real threat of potential

prosecution19 under the Act will only exacerbate the

unrest. As the Seventh Circuit aptly observed fifty

years ago, “rioting, in history and by nature, almost

invariably occurs as an expression of political, social,

or economic reactions, if not ideas.” Dellinger, 472

F.2d at 359. 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. Anyone living

in the United States in the last year intuitively knows

that these topics have been the source of national

interest. Google Trends data supports the same,

reflecting internet search queries within the United

States for the terms “incite” (the first graph) and

The Act itself contains an express requirement that

the Department of Justice “shall proceed as speedily as possible

. . .with any appeal which may lie from any decision adverse to

the Government resulting from such prosecution” under the Act.

18 U.S.C. § 2101(d).

searches.

Or if not prosecution, at a minimum invasive

“incitement” (the second graph) over the last 10

years:20

Google Trends data may be generated at

https://trends.google.com/trends/?geo=US. According to Google,

the numbers “represent search interest relative to the highest

point on the chart for the given region and time. A value of 100

is the peak of popularity for the term. A value of 50 means that

the term is half as popular. A score of 0 means there was not

enough data for this term.”

The same is true for search queries like “riot vs

protest” (the first graph) and “riot” (the second graph):

At the same time, the ability to communicate online

is now unlimited, making speech cheaper and easier

than ever. As of 2019, the Pew Research Center

reported that more than 72% of adults in America use

some type of social media.21 Digital marketing data

reports suggest that social media users in the United

States spent an average of 2 hours and 7 minutes a

day using social media between 2020 and 2021.22

The sheer volume of internet speech is

critically important where the Act makes it a crime

where someone “posts on social media, urging others

to attend a rally” with the “purpose of promoting or

organization a riot” even if “the rally is six months

away” and therefore “there is no imminent lawless

action.” Rundo, --F. Supp. 3d--, 2019 WL 11779228 at

https://www.pewresearch.org/internet/fact-sheet/

social-media/

https://www.zdnet.com/article/we-will-spend-420million-years-on-social-media-in-2021/

*4. Prosecutions under the Act for internet speech of

this kind are no longer mere hypotheticals.23

This case is a good vehicle to resolve

this important issue.

This case is a particularly good vehicle for

addressing the question presented. It comes to the

Court on a direct appeal and thus does not present

any of the complications that might arise in a

collateral-review posture. The court of appeals

directly addressed the facial constitutionality of the

statute and whether the statute was severable. It also

directly determined that the petitioner’s convictions

survived under the red-lined version of the law the

court left in place. Each of the three questions

presented is also outcome-determinative.

CONCLUSION

For the reasons given above, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

/s Raymond C. Tarlton

Raymond C. Tarlton

Counsel of Record

Tarlton Polk, PLLC

PO Box 1386

Raleigh, NC 27602

(919) 948-6464

rtarlton@tarltonpolk.com

See fn. 1 supra.

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Published Opinion of

The United States Court of Appeals

For the Fourth Circuit

Re: Affirming the Judgments of the District Court

entered August 24, 2020 ................................ 1a

Judgment of

The United States Court of Appeals

For the Fourth Circuit

entered August 24, 2020 .............................. 53a

Judgment in a Criminal Case of

The United States District Court for

The Western District of Virginia

entered July 26, 2019................................... 55a

Order of

The United States Court of Appeals

For the Fourth Circuit

Re: Denying Petition for Rehearing and

Rehearing En Banc

entered October 5, 2020 ............................... 68a

FILED: August 24, 2020

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4550

UNITED STATES OF AMERICA,

Plaintiff - Appellee

MICHAEL PAUL MISELIS,

Defendant - Appellant

-----------------------------THE FREE EXPRESSION FOUNDATION, INC.,

Amicus Supporting Appellant

No. 19-4551

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

BENJAMIN DRAKE DALEY,

Defendant – Appellant,

-----------------------------THE FREE EXPRESSION FOUNDATION, INC.,

Amicus Supporting Appellant.

Appeals from the United States District Court for the

Western District of Virginia, at Charlottesville.

Norman K. Moon, Senior District Judge. (3:18-cr00025-NKM-JCH-2; 3:18-cr-00025-NKM-JCH-1)

Argued: January 31, 2020

Decided: August 24, 2020

Before KING, DIAZ, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the

opinion, in which Judge King and Judge Rushing

joined.

ARGUED: Lisa M. Lorish, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Charlottesville,

Virginia, for Appellants. Laura Day Rottenborn,

OFFICE OF THE UNITED STATES ATTORNEY,

Roanoke, Virginia, for Appellee. ON BRIEF: Juval O.

Scott, Federal Public Defender, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Roanoke, Virginia,

for Appellant Benjamin Daley. Raymond C. Tarlton,

TARLTON | POLK PLLC, Raleigh, North Carolina,

for Appellant Michael Miselis. Thomas T. Cullen,

United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Roanoke, Virginia, for

Appellee. Glen K. Allen, Baltimore, Maryland, for

Amicus The Free Expression Foundation, Inc.

DIAZ, Circuit Judge:

Michael Paul Miselis and Benjamin Drake

Daley entered conditional guilty pleas to one count

each of conspiracy to commit an offense against the

United States, in violation of 18 U.S.C. § 371, with the

substantive offense being a violation of the Anti-Riot

Act, 18 U.S.C. §§ 2101–02. The charges arise from the

defendants’ violent participation in three white

supremacist rallies during the year 2017: two in their

home state of California, and the third being the

notorious “Unite the Right” rally in Charlottesville,

Virginia.

On appeal, the defendants challenge their

convictions on the grounds that the Anti- Riot Act is

facially overbroad under the Free Speech Clause of

the First Amendment, as well as void for vagueness

under the Due Process Clause of the Fifth

Amendment. Reviewing these issues de novo, Giovani

Carandola, Ltd. v. Fox, 470 F.3d 1074, 1079 (4th Cir.

2006),

disagree

that

the

statute

unconstitutionally vague. But we agree that it treads

too far upon constitutionally protected speech—in

some of its applications.

While the category of speech that lies at the

core of the Anti-Riot Act’s prohibition, called

“incitement,” has never enjoyed First Amendment

protection, the statute sweeps up a substantial

amount of speech that remains protected advocacy

under the modern incitement test of Brandenburg v.

Ohio, 395 U.S. 444 (1969) (per curiam), insofar as it

encompasses speech tending to “encourage” or

“promote” a riot under 18 U.S.C. § 2101(a)(2), as well

as speech “urging” others to riot or “involving” mere

advocacy of violence under 18 U.S.C. § 2102(b).

In all other respects, however, the statute

comports with the First Amendment. And because the

discrete instances of overbreadth are severable from

the remainder of the statute, the appropriate remedy

is to invalidate the statute only to the extent that it

reaches too far, while leaving the remainder intact.

Finally, because the factual bases for the

defendants’ guilty pleas conclusively establish that

their own substantive offense conduct—which

involves no First Amendment activity—falls under

the Anti-Riot Act’s surviving applications, their

convictions stand.

We begin with an overview of the defendants’

offense conduct, the procedural history, and the AntiRiot Act.

The defendants (who are residents of Southern

California) began in early 2017 to associate with a

local white supremacist group called the “Rise Above

Movement,” or “RAM” for short. Billing itself as a

“combat-ready, militant group of a new nationalist

white identity movement,” the group’s chief purpose

was to attend “purported ‘political’ rallies” (typically

organized by other groups) at which its members

engaged in violent attacks on counter-protestors. J.A.

227, 232. And to prepare for such rallies, RAM

members spent their weekends training in martial

arts and other combat techniques.

The charges in this case arise from three such

rallies held in 2017. The first took place on March 25,

in Huntington Beach, California, where the

defendants and their colleagues first obtained frontpage notoriety for RAM by carrying out numerous

assaults against counter-protesters. They celebrated

this coverage among themselves and posted it on

various white supremacist platforms to recruit new

members to their ranks.

The second rally took place on April 15, in

Berkeley, California. The defendants and a handful

of other RAM members drove up to Berkeley the day

before, riding together in an eleven-passenger rental

van. Hundreds of white nationalists attended the

rally, as did dozens of counter-protestors, and violence

again broke out amongst the camps. In one clash, the

defendants and their colleagues trampled a barrier

separating the two camps and assaulted a group of

counter-protestors. In another, after the rally had

been broken up and the participants dispersed into

the streets of downtown Berkeley, the defendants and

their colleagues chased after another group of

counter-protestors, whom they proceeded to punch,

kick, and stomp; defendant Miselis even broke his

hand in the effort.

After returning from Berkeley, RAM members

became aware that the now-infamous “Unite the

Right” rally would be held at Emancipation Park in

Charlottesville, Virginia, on August 12, 2017. The

rally had been organized by Jason Kessler, a selfstyled “white advocate,” to protest the City Council’s

vote to remove a statue of the Confederate general

Robert E. Lee from the park. See Hawes Spencer &

Sheryl Gay Stolberg, Virginia Town Is on Edge Over

Confederate Statue, N.Y. Times, Aug. 12, 2017, at

A12. The defendants and at least two of their RAM

colleagues, Cole Evan White and Thomas Walter

Gillen (who were later charged alongside them), each

purchased roundtrip airfare to attend.

The defendants and their colleagues arrived in

Charlottesville on August 11, 2017. That night, they

joined hundreds of other white nationalists for a

torch-lit march on the campus of the University of

Virginia, just west of downtown Charlottesville.

There, the torch-bearers chanted slogans such as

“Blood and soil!” and “Jews will not replace us!” as

they made their way to the statue of Thomas

Jefferson in front of The Rotunda (the University’s

signature building), where they confronted a smaller

group of student counter- protesters bearing a banner

that read, “VA Students Act Against White

Supremacy.” J.A. 230, 235. A brawl ensued between

the two camps, in which defendant Daley and other

RAM members attacked multiple counter-protestors

with their tiki torches.

The morning of August 12, the defendants

arrived at Emancipation Park for the long-planned

“Unite the Right” rally. But by 11 a.m., violence

erupted (yet again) between groups of white

nationalists and counter-protestors who had

surrounded the park. See Sheryl Gay Stolberg &

Brian M. Rosenthal, White Nationalist Protest Leads

to Deadly Violence, N.Y. Times, Aug. 13, 2017, at A1.

Police promptly declared the assembly unlawful and

began to clear the park, while officials from the city

declared a state of emergency, citing an “imminent

threat of civil disturbance, unrest, potential injury to

persons, and destruction of public and personal

property.” Id.

Much of the violence associated with the “Unite

the Right” rally took place after it had been made to

disperse, in the streets of downtown Charlottesville.1

For their part, the defendants engaged in several

skirmishes both during and after the rally, including

a clash near the 2nd Street NE entrance to the park

in which they “collectively pushed, punched, kicked,

choked, head-butted, and otherwise assaulted” a

group of counter-protestors, and “not in self-defense.”

J.A. 231, 236.

Following a federal investigation, the

defendants (along with Gillen and White) were

indicted on two counts each: (1) conspiracy to commit

an offense against the United States, in violation of

18 U.S.C. § 371, with the underlying offense being the

substantive violation set forth in Count 2; and (2)

traveling in interstate commerce with intent to riot,

1 That violence culminated in the death of Heather D. Heyer,

who was killed when an avowed neo-Nazi deliberately plowed

into her and over a dozen others with his car. See Sheryl Gay

Stolberg & Brian M. Rosenthal, White Nationalist Protest Leads

to Deadly Violence, N.Y. Times, Aug. 13, 2017, at A1.

in violation of the Anti-Riot Act, 18 U.S.C. §§ 2101–

02.

The defendants moved to dismiss the

indictment, raising numerous challenges. Following a

hearing, the district court denied the motion. United

States v. Daley, 378 F. Supp. 3d 539, 545 (W.D. Va.

2019). The defendants each pled conditionally guilty

to Count 1 the next day, subject to their rights to

appeal the constitutionality of the Anti-Riot Act. The

district court thereafter sentenced Daley to a 37month prison term, while Miselis received 27 months;

each was also given two years of supervised release.

They appealed.2

Congress passed the Anti-Riot Act as a rider to

the Civil Rights Act of 1968, amidst an era, not unlike

our own, marked by a palpable degree of social unrest.

See Anti-Riot Act, Pub. L. No. 90-284 § 104(a), 82 Stat.

73, 75–77 (April 11, 1968). The statute’s passage

followed on the heels of what has been deemed the

“long, hot summer of 1967,” in which more than 150

cities across 34 states witnessed riots stirred by issues

such as racial injustice and the war in Vietnam. See

generally Malcolm McLaughlin, The Long, Hot

Summer of 1967: Urban Rebellion in America (2014).

And the statute’s immediate catalyst was the

upheaval sparked anew, in over 100 American cities,

Gillen also pled guilty and filed an appeal alongside the

defendants, see United States v. Gillen, No. 19-4553 (4th Cir.

filed July 30, 2019), but moved to sever his appeal. We granted

the motion, and have since held Gillen’s appeal in abeyance

pending our decision here. As for White, he pled guilty to Count

1 as well, see United States v. Daley et al., No. 3:18-mj-24 (W.D.

Va. 2018), ECF Nos. 57–60, but hasn’t filed an appeal.

by the assassination of Martin Luther King, Jr. on

April 4, 1968. See Marvin Zalman, The Federal AntiRiot Act and Political Crime: The Need for Criminal

Law Theory, 20 Vill. L. Rev. 897, 912 (1975).

The turbulence that lingered throughout 1968

gave rise to most of the few cases in which courts have

addressed—and upheld—the constitutionality of the

Anti-Riot Act on overbreadth or vagueness grounds.

See United States v. Dellinger, 472 F.2d 340, 355 (7th

Cir. 1972), cert. denied, 410 U.S. 970 (1973); United

States v. Hoffman, 334 F. Supp. 504, 509 (D.D.C.

1971); In re Shead, 302 F. Supp. 560, 567 (N.D. Cal.

1969), aff’d sub nom. on other grounds, Carter v.

United States, 417 F.2d 384 (9th Cir. 1969). The

statute wasn’t challenged again until along came

RAM, whose participation in the California rallies

described above also gave rise to the other recent

facial challenge, and the first successful one. See

United States v. Rundo, No. 18-cr-759 (C.D. Cal. June

3, 2019), appeal docketed, No. 19-50189 (9th Cir. June

12, 2019) (finding the Anti-Riot Act facially overbroad

and dismissing indictments against RAM members

who didn’t travel to Charlottesville).

The Anti-Riot Act comprises three provisions

that bear on the defendants’ facial challenges: one

that proscribes a range of speech and conduct, and

two that contribute to the definition of such speech

and conduct. First and foremost, § 2101(a) provides

that:

Whoever travels in interstate or foreign

commerce or uses any facility of

interstate

foreign

commerce,

including, but not limited to, the mail,

10a

telegraph,

telephone,

television, with intent—

radio,

(1) to incite a riot; or

(2) to organize, promote, encourage,

participate in, or carry on a riot;

(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) of

this paragraph[3]—

Shall be fined under this title, or imprisoned

not more than five years, or both.

18 U.S.C. § 2101(a).

Second, § 2102(a) defines the “riot” at the

center of the statute, and which forms the object of §

2101(a)’s laundry list of alternative purposes, to mean

As codified, the statute contains a footnote in this location

explaining that the reference to “subparagraph (A), (B), (C), or

(D)” is the result of a drafting mistake, and should read

“[sub]paragraph (1), (2), (3), or (4).” See 18 U.S.C. § 2101 n.1.

11a

a public disturbance involving (1) an act

or acts of violence by one or more persons

part of an assemblage of three or more

persons, which act or acts shall

constitute a clear and present danger of,

or shall result in, damage or injury to the

property of any other person or to the

person of any other individual or (2) a

threat or threats of the commission of an

act or acts of violence by one or more

persons part of an assemblage of three or

more persons having, individually or

collectively, the ability of immediate

execution of such threat or threats,

where the performance of the threatened

act or acts of violence would constitute a

clear and present danger of, or would

result in, damage or injury to the

property of any other person or to the

person of any other individual.

Id. § 2102(a).

And third, § 2102(b) glosses the ordinary

meaning of each of the speech- and conduct-related

verbs found in § 2101(a)(1)–(2) as follows:

As used in this chapter, the 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

12a

assertion of the rightness of, or the right

to commit, any such act or acts.

Id. § 2102(b). Because the statute’s constitutionality

hinges on these three interlocking provisions, we

focus on them as we address the defendants’ appeal.

II.

Before turning to the defendants’ facial

challenges to the Anti-Riot Act, we take up an issue

on which we sought supplemental briefing: whether

the defendants have standing to contest the

constitutionality of a statute forming the object of

their conspiracy convictions under 18 U.S.C. § 371.

We agree with the parties that they do.

It is well-established that a conspiracy consists

of “an agreement among the defendants to do

something which the law prohibits.” United States v.

Hedgepeth, 418 F.3d 411, 420 (4th Cir. 2005) (quoting

United States v. Meredith, 824 F.2d 1418, 1428 (4th

Cir. 1987)); see also Salinas v. United States, 522 U.S.

52, 65 (1997) (“A conspirator must intend to further

an endeavor which, if completed, would satisfy all of

the elements of a substantive criminal offense . . . .”).

Indeed, this axiomatic principle is embedded directly

in the text of § 371, which spells out a conspiracy “to

commit any offense against the United States.” See 18

U.S.C. § 371.

Yet because the object of an agreement can’t be

unlawful “if the statute defining [it] is

unconstitutional,” it follows that “no prosecution for

conspiracy to commit that offense will lie.” United

States v. Rosen, 520 F. Supp. 2d 786, 792 (E.D. Va.

2007). We therefore agree with our sister circuit that

13a

“the statutory requirement of conspiring to commit an

‘offense against the United States,’ 18 U.S.C. § 371, is

not fulfilled by an offense which fails to meet

constitutional muster.” United States v. Baranski,

484 F.2d 556, 561 (7th Cir. 1973). Accordingly,

because the defendants’ convictions under § 371

cannot stand if the Anti-Riot Act is unconstitutional,

we are satisfied that the defendants have standing to

pursue the facial challenges to which we now turn.

III.

The defendants contend that the Anti-Riot Act

is facially overbroad, under the Free Speech Clause of

the First Amendment, in a variety of respects. We

agree—in part.

In our view, the Anti-Riot Act sweeps up a

substantial amount of speech that retains the status

of protected advocacy under Brandenburg insofar as

it encompasses speech tending to “encourage” or

“promote” a riot under § 2101(a)(2), as well as speech

“urging” others to riot or “involving” mere advocacy of

violence under § 2102(b).

In all other aspects,

however, we find the statute consistent with the First

Amendment. And because we also find that the

discrete areas of overbreadth are severable—meaning

that the remainder of the statute is constitutionally

valid, capable of operating independently, and

consistent with Congress’s basic objectives—the

appropriate remedy is to invalidate the statute only

to the extent that it reaches too far, while leaving the

remainder intact.

14a

We begin by setting out the principles that

guide our overbreadth analysis. Here, the defendants

bring a facial challenge to the Anti-Riot Act, meaning

they claim that the statute is unconstitutional not as

it applies to their own conduct, but rather “on its

face,” as it applies to the population generally. See

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442, 449 (2008). Such claims of facial

invalidity “are disfavored for several reasons.” Id. at

450 (cleaned up). For one thing, facial challenges “run

contrary to the fundamental principle of judicial

restraint that courts should neither anticipate a

question of constitutional law in advance of the

necessity of deciding it nor formulate a rule of

constitutional law that is broader than is required by

the precise facts to which it is to be applied.” Id.

(cleaned up). Relatedly, facial challenges “threaten to

short circuit the democratic process by preventing

laws embodying the will of the people from being

implemented in a manner consistent with the

Constitution.” Id. at 451.

In light of these twin concerns, a facial

challenge typically requires a showing that “no set of

circumstances exists under which the Act would be

valid, i.e., that the law is unconstitutional in all of its

applications,” Wash. State Grange, 552 U.S. at 449

(cleaned up); or “that the statute lacks any plainly

legitimate sweep,” United States v. Stevens, 559 U.S.

460, 472 (2010) (cleaned up). And in assessing

whether a statute meets one of these high bars, courts

must typically take care “not to . . . speculate about

hypothetical or imaginary cases.” Wash. State

Grange, 552 U.S. at 50 (cleaned up).

15a

In the First Amendment context, however, the

fear of chilling protected expression “has led courts to

entertain facial challenges based merely on

hypothetical applications of the law to nonparties.”

Preston v. Leake, 660 F.3d 726, 738 (4th Cir. 2011).

Under this “second type” of facial challenge, a statute

“may be invalidated as overbroad” as long as “a

substantial number of its applications are

unconstitutional, judged in relation to the statute’s

plainly legitimate sweep.” Stevens, 559 U.S. at 473

(cleaned up).

This so-called overbreadth doctrine “allows a

party to challenge a law facially under the First

Amendment by ‘describing a substantial number of

instances of arguable overbreadth of the contested

law,’ even if the law is constitutional as applied to

[himself].” Preston, 660 F.3d at 738–39 (quoting

Wash. State Grange, 552 U.S. at 449 n.6) (cleaned up);

see also Stevens, 559 U.S. at 483–84 (Alito, J.,

dissenting) (“[T]he over-breadth doctrine allows a

party to whom the law may be constitutionally

applied to challenge the statute on the ground that it

violates the First Amendment rights of others.”). In

fact, in the overbreadth context, the “usual judicial

practice” is to determine that the statute “would be

valid as applied” to the challenger’s own conduct

before proceeding to a facial challenge premised on

the hypothetical conduct of others “unnecessarily.”

Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S.

469, 484–85 (1989); accord Preston, 660 F.3d at 738.4

4 We adhere to the usual judicial practice here, being satisfied

that the circumstances under which the defendants raise their

facial overbreadth challenge amount to a concession that the

Anti-Riot Act may be constitutionally applied to their own

16a

To maintain an “appropriate balance” between

the “competing social costs” at issue in the

overbreadth context, the Supreme Court has

“vigorously enforced the requirement that a statute’s

overbreadth be substantial, not only in an absolute

sense, but also relative to the statute’s plainly

legitimate sweep.” United States v. Williams, 553

U.S. 285, 292 (2008). As the Court has explained,

On the one hand, the threat of

enforcement of an overbroad law deters

people from engaging in constitutionally

protected speech, inhibiting the free

exchange of ideas. On the other hand,

invalidating a law that in some of its

applications is perfectly constitutional—

particularly a law directed at conduct so

antisocial that it has been made

criminal—has obvious harmful effects.

Id. In consequence, it isn’t enough to render a statute

susceptible to a facial attack that one may simply

“conceive of some impermissible applications.”

offense conduct. For starters, because the defendants don’t

appeal the district court’s rejection of their as-applied challenge,

see Daley, 378 F. Supp. 3d at 558–59, they’ve waived any

argument to the contrary, see, e.g., United States v. Hudson, 673

F.3d 263, 268 (4th Cir. 2012). Relatedly, at oral argument, the

defendants confirmed that they’ve abandoned their as-applied

challenge. See Oral Arg. at 8:10–8:12 (“We’re never going to

make an as-applied challenge, Your Honor.”). Finally, for

reasons we make clear in Part V, the record readily

substantiates the defendants’ tacit acknowledgement that the

statute is “plainly legitimate as applied” to their conduct. Cf.

Stevens, 559 U.S. at 472–73 (proceeding under such an

assumption after finding that any as-applied challenge had been

waived).

17a

Members of City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 800 (1984).

Overbreadth analysis proceeds along several

steps. Because “it is impossible to determine whether

a statute reaches too far without first knowing what

the statute covers,” we must first “construe the

challenged statute.” Williams, 553 U.S. at 293. In so

doing, we must seek to avoid any “constitutional

problems” by asking whether the statute is “subject to

[] a limiting construction.” New York v. Ferber, 458

U.S. 747, 769 n.24 (1982). We must then determine

whether, so construed, the statute “criminalizes a

substantial amount of protected expressive activity.”

Williams, 553 U.S. at 297. Finally, if the statute

proves “impermissibly overbroad,” we must assess

whether “the unconstitutional portion” is “severable”

from the remainder; if so, only that portion “is to be

invalidated.” Ferber, 458 U.S. at 769 n.24. Altogether,

these efforts to preserve a statute from facial

invalidation reflect the notion “that the overbreadth

doctrine is strong medicine,” to be applied “only as a

last resort,” in cases where it is “truly warranted.” See

id. at 769.

In conducting our analysis, we find it

preferable, at least in the context of the Anti- Riot Act,

to begin (at step zero, as it were) by delineating the

scope of unprotected speech that the statute aims to

regulate. Cf. Dellinger, 472 F.2d at 358 (“Ideally the

analysis should begin with a delineation of the scope

of speech protected by the first amendment.”). With

that backdrop in mind, we’ll be better able to perceive

where the statute overshoots its target and purports

to regulate a substantial amount of protected speech.

18a

A glance at the Anti-Riot Act reveals that the

category of unprotected speech that lies at the core of

the statute’s prohibition is that which also lies at the

origin

First

Amendment

jurisprudence:

“incitement.” In general legal parlance, “incitement”

refers to “[t]he act of persuading”—that is, of

inducing—“another person to commit a crime.” See

Incitement, Black’s Law Dictionary (11th ed. 2019); cf.

Persuade, Black’s Law Dictionary (11th ed. 2019) (“To

induce (another) to do something; to make someone

decide to do something[.]”). More important for our

purposes is how the Supreme Court has defined

“incitement” in First Amendment jurisprudence. And

notably, while the Court initially did so much more

broadly than the dictionary, the modern test does so

almost as narrowly.

The modern incitement test derives from the

Court’s per curiam decision in Brandenburg, see 395

U.S. 444, which came down in 1969, the year after the

Anti-Riot Act was enacted. That case concerned the

conviction of a Ku Klux Klan leader under the Ohio

Criminal Syndicalism statute, id. at 444–45, which

made it a crime to “advocate or teach the duty,

necessity, or propriety of violence as a means of

accomplishing industrial or political reform,” id. at

448 (cleaned up).5

5 The specific words giving rise to the Klansman’s prosecution in

Brandenburg were these: “We’re not a revengent organization,

but if our President, our Congress, our Supreme Court,

continues to suppress the white, Caucasian race, it’s possible

that there might have to be some revengeance taken.” See id. at

446.

19a

Though the Court had upheld an analogous

statute in Whitney v. California, 274 U.S. 357 (1927),

it asserted that Whitney “ha[d] been thoroughly

discredited by later decisions,” from which it distilled

the principle that “the constitutional guarantees of

free speech” protected the “advocacy of the use of force

or of law violation except where such advocacy is

directed to inciting or producing imminent lawless

action and is likely to incite or produce such action.”

See id. at 447. And because the Ohio statute

“purport[ed] to punish mere advocacy” of lawless

action as opposed to advocacy directed and likely to

produce imminent lawless action, the Court held that

it fell “within the condemnation” of the First

Amendment. Id. at 449 (emphasis added).

While Brandenburg purported to draw its

incitement test from midcentury cases, it’s widely

acknowledged that the Court had theretofore

(including well after Whitney) used a far more

encompassing test, called the “clear and present

danger” test, to determine when advocacy of

lawlessness became unprotected incitement. See

generally Wallace Mendelson, Clear and Present

Danger: From Schenk to Dennis, 52 Colum. L. Rev.

313 (1952). Under that test, “[t]he question in every

case” is whether the speech was “of such a nature” and

“used in such circumstances . . . as to create a clear

and present danger that [it] w[ould] bring about the

substantive evils that Congress has a right to

prevent.” Schenck v. United States, 249 U.S. 47, 52

(1919); see also Dennis v. United States, 341 U.S. 494,

509 (1951); Whitney, 274 U.S. at 374; Frohwerk v.

United States, 249 U.S. 204, 206 (1919); Debs v.

United States, 249 U.S. 211, 215 (1919). Devoid of any

such limiting criteria as directedness, likelihood, or

20a

imminence, the clear-and-present-danger test applied

to a wide range of advocacy that now finds refuge

under Brandenburg. See Dennis, 341 U.S. at 516–17

(upholding conviction for mere advocacy of

Communism); Whitney, 274 U.S. at 371–72 (same);

Frohwerk, 249 U.S. at 206–07 (upholding conviction

for mere advocacy of disobedience to the draft);

Schenck, 249 U.S. at 51–52 (same).

Brandenburg has thus been widely understood,

starting with the two concurring Justices, as having

significantly (if tacitly) narrowed the category of

incitement. See Brandenburg, 395 U.S. at 449–50

(Black, J., concurring) (“[T]he ‘clear and present

danger’ doctrine should have no place in the

interpretation of the First Amendment.”); id. at 454

(Douglas, J., concurring) (“I see no place in the regime

of the First Amendment for any ‘clear and present

danger’ test . . . .”); see also, e.g., Denver Area Educ.

Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727,

778 (1996) (Souter, J., concurring) (“[T]he clear and

present danger [test] of Schenk v. United States . . .

evolved into the modern incitement rule

Brandenburg v. Ohio . . . .”); see generally Comment,

Staughton Lynd, Brandenburg v. Ohio: A Speech Test

for All Seasons?, 43 U. Chi. L. Rev. 151 (1975). These

days, then, advocacy of lawlessness retains the

guarantees of free speech unless it’s directed and

likely to produce imminent lawlessness.

corollary,

we’ve

understood

Brandenburg’s protection to be limited to mere or

“abstract” advocacy. Rice v. Paladin Enters., Inc., 128

F.3d 233, 243 (4th Cir. 1997); cf. Brandenburg, 395

U.S. at 447–48 (“[T]he mere abstract teaching of the

moral propriety . . . [of] a resort to force and violence[]

21a

is not the same as preparing a group for violent action

and steeling it to such action.” (cleaned up)). Speech

taking some form “other than abstract advocacy,” by

contrast, such as that which “constitutes . . . aiding

and abetting of criminal conduct,” doesn’t implicate

the First Amendment under our Rice decision. See

128 F.3d at 239, 242–43 (holding that the publication

of a Hit Man: A Technical Manual for Independent

Contractors, whose detailed and concrete instructions

on “how to murder and become a professional killer”

assisted a man in taking three lives, wasn’t protected

abstract advocacy); see also Williams, 553 U.S. at

299–300 (suggesting that Brandenburg only protects

“abstract advocacy”). In other words, Rice effectively

recognizes a second category of unprotected speech

inherent in that of incitement, which may be

proscribed without regard to whether it’s directed and

likely to produce imminent lawlessness.

With this delineation in mind, we consider

whether the Anti-Riot Act encompasses the sort of

advocacy that Brandenburg “jealously protects.” See

Rice, 128 F.3d at 262.6

Because we agree with the parties that our overbreadth

analysis revolves around the contours of protected advocacy

under Brandenburg, we decline the Free Expression

Foundation’s invitation, as amicus supporting the defendants, to

analyze the Anti-Riot Act under strict scrutiny. In that regard,

we note the view of some commentators that Brandenburg

effectively operates as an even stricter stand-in for strict

scrutiny when it comes to regulating “advocacy of illegal

conduct.” See, e.g., Eugene Volokh, Freedom of Speech,

Permissible Tailoring and Transcending Strict Scrutiny, 144 U.

Penn. L. Rev. 2417, 2245 n.114 (1996).

22a

We find it useful to begin our analysis of the

Anti-Riot Act by breaking § 2101(a) down into the four

essential elements of a violation, which are:

(1) “travel[ing] in . . . or us[ing] any

facility of interstate commerce”;

(2) “with intent” either to a) “incite”; b)

“organize,

promote,

encourage,

participate in, or carry on”; c) “commit

any act of violence in furtherance of”; or

d) “aid or abet any person in inciting or

participating in or carrying on . . . or

committing any act of violence in

furtherance of”;

(3) “a riot”; and

(4) “perform[ing] or attempt[ing] to

perform any other overt act,” for any of

the foregoing purposes, “either during

the course of any such travel or use or

thereafter.”

See 18 U.S.C. § 2101(a). Stated otherwise, a violation

requires two overt acts plus specific intent to carry out

one or more of numerous alternative purposes with

respect to a riot.

The defendants argue that three of these

elements tread on protected advocacy: (1) the “any

other” (or second, in addition to the antecedent “travel

in . . . or use of any facility of interstate commerce”)

overt-act element; (2) the specific-intent element; and

(3) the definition of a “riot.” We construe the statute

by focusing on each in turn.

23a

We start with the defendants’ contention that

the “any other” or second overt-act element is

overbroad because, by its plain meaning, it extends

criminal consequences to “speech and expression” (or

even nonexpressive conduct) “far removed from

violence,” Defs.’ Br. at 10. In the defendants’ view,

that means the statute fails to bear an adequate

relation between speech and violence under

Brandenburg, which requires lawlessness to be the

likely and imminent result of speech and expression.

Appearing to agree that a straightforward

reading of this element to require only “a step toward”

one of the purposes set forth under § 2101(a)(1)–(4)

would pose overbreadth problems, the government

urges us to take after our sister circuit by construing

it to require the actual “fulfillment” of one or more of

these purposes. Cf. Dellinger, 472 F.2d at 361–62

(“assuming” such a view). So

construed,

the

government contends that the statute necessitates

“an adequate relation between . . . speech and action.”

See id.

We disagree with the parties. In our view, the

presence of an overt-act element (or two, in fact),

together with specific intent to incite or engage in a

riot, simply indicates that the Anti-Riot Act was

drafted as an attempt offense, of which it bears all the

classic hallmarks, rather than a commission offense.

See Martin v. Taylor, 857 F.2d 958, 961 (4th Cir.

1988) (“An attempt crime requires specific intent to

commit a crime and some overt act which tends

toward but falls short of the consummation of the

crime.”); United States v. McFadden, 739 F.2d 149,

24a

152 (4th Cir. 1984) (“The classical elements of an

attempt are intent to commit a crime, the execution of

an overt act in furtherance of the intention, and a

failure to consummate the crime.”). Indeed, as the

indictment in this very case illustrates, the crime

described by § 2101(a) is simply that of “Travel with

Intent to Riot.” J.A. 73.

The inescapable conclusion that Congress

drafted

the

Anti-Riot

Act

encompass

unconsummated attempts to incite or engage in a riot

explains why, as the defendants put it, the statute

“does not criminalize rioting” alone, but also

“behavior far-removed” from rioting. Defs.’ Br. at 27.

It also explains why the statute’s overt-act elements

don’t implicate Brandenburg: because, as with

inchoate offenses generally, the overt acts

themselves—“which may be entirely innocent when

considered alone,” United States v. Fleschner, 98 F.3d

155, 159–60 (4th Cir. 1996)—serve only to establish

that a defendant specifically intended to carry out

(and went far enough toward carrying out) an

unlawful “purpose,” see Meredith, 824 F.2d at 1428.7

Recall that an inchoate offense requires proof

beyond a reasonable doubt that a defendant

“intend[ed] to further an endeavor which, if

completed, would satisfy all of the elements of a

substantive criminal offense.” See Salinas, 522 U.S.

at 65. Accordingly, to obtain a conviction under the

Though we’re not aware of another instance in which Congress

has sought to proscribe the attempt to engage in unprotected

speech, we see no bar to such legislation, in the same way that

Congress may proscribe any other attempt to engage in unlawful

conduct (provided, of course, that the conduct falls under

Congress’s limited legislative authority).

25a

Anti-Riot Act, the government must at a minimum

prove that, notwithstanding any failure of

consummation, the defendant acted with specific

intent to engage in unprotected speech or conduct

under § 2101(a)(1)–(4). It’s therefore with respect to

the defendant’s intended speech, as opposed to actual

speech (if any), that Brandenburg mandates the

adequate relation between words and lawless action

for purposes of the Anti-Riot Act.

So framed, the central overbreadth question

becomes whether any of the purposes included in the

statute’s specific-intent element implicate protected

advocacy. If so, those purposes can’t form the basis of

an attempt to engage in unlawful speech, rendering

overbroad the particular way of violating the statute

described thereby.

We proceed to take up this question.

The defendants contend that the specific-intent

element is overbroad in two ways: (1) with respect to

the plain meaning of the string of speech-related

verbs under § 2101(a)(2); and (2) with respect to the

additional meaning that many of the speech-related

verbs under § 2101(a)(1)–(4) obtain under § 2102(b).

We take up each provision in turn.

Because the First Amendment protects speech

(the sine qua non of expression) as opposed to mere

conduct,8 and because the purposes set forth under

Of course, the First Amendment does protect expressive

conduct through an intermediate (i.e., “less demanding”) level of

26a

§ 2101(a)(1)–(4) encompass both speech- and mereconduct-related varieties, it’s necessary to distinguish

between them. Here, we agree with the parties, as

well as our sister circuit, that the purposes

implicating speech are those embodied by the verbs

“incite,” “organize,” “promote,” and “encourage” under

§ 2101(a)(1)–(2). See Dellinger, 472 F.2d at 361.9

With respect to “incite” under § 2101(a)(1), we

have little difficulty concluding that this verb

encompasses no more than unprotected speech under

Brandenburg. Thus, in the world of Brandenburg,

“incite” most sensibly refers to speech that is directed

and likely to produce an imminent lawlessness. The

other conceivable definition is the dictionary one,

which, as noted, is even narrower than Brandenburg’s

because it requires lawlessness to occur, not just be

likely. So either way, § 2101(a)(1) readily comports

with the First Amendment.

Turning to § 2101(a)(2), however, we find that

two verbs in the string “to organize, promote, [or]

encourage” a riot fail to bear the requisite relation

between speech and lawlessness. The loosest such

scrutiny under United States v. O’Brien, 391 U.S. 367, 376–77

(1968). See Texas v. Johnson, 491 U.S. 397, 406–07 (1989). But

the defendants don’t argue—and properly so, in our view—that

any of the statute’s conduct-related purposes implicate

expressive conduct or, if so, fail to pass muster under O’Brien.

While the compound verb “to aid or abet” under § 2101(a)(4)

can also implicate speech, we agree with the government that

any such speech would constitute “aiding and abetting of

criminal conduct,” which doesn’t implicate the First Amendment

under Rice, see 128 F.3d at 242–43—especially since none of the

statutory objects of such aiding-and- abetting speech are

themselves overbroad (including, as we explain, “incite”).

27a

relation in the bunch belongs to “encourage,” which

means simply “to attempt to persuade (someone) to

something.”

See

Encourage,

MerriamWebster Unabridged, https://unabridged.merriamwebster.com/unabridged/encourage (last accessed

July 30, 2020). Speech tending to encourage a riot

thus encompasses all hypothetical efforts to advocate

for a riot, including the vast majority that aren’t likely

to produce an imminent riot (even assuming they’re

directed to producing a riot). Indeed, because mere

encouragement is quintessential protected advocacy,

the Supreme Court has recognized that “[t]he mere

tendency of speech to encourage unlawful acts is not

a sufficient reason for banning it” under

Brandenburg. Ashcroft v. Free Speech Coalition, 535

U.S. 234, 253 (2002); see also Williams, 553 U.S. at

300 (offering the statement, “I encourage you to

obtain child pornography,” as protected advocacy). It

follows that Brandenburg protects speech having a

mere tendency to encourage others to riot.

The verb “promote” occupies a similarly

overinclusive position on the continuum of relation

between advocacy and action. While “promote”

admits of a wide range of meanings depending on

context, we think that, in the context of an enterprise

like a riot, it’s best understood to mean “to support or

encourage something,” or “to advance” or “further

something by helping to . . . introduce it.” See Promote,

Encarta Webster’s Dictionary of the English

Language (2d ed. 2004); see also Promoter, Encarta

Webster’s Dictionary of the English Language (2d ed.

2004) (“a supporter or advocate of something”); cf.

Williams, 553 U.S. at 294 (defining “promote” to refer

to “the act of recommending”). These definitions

indicate that “promote” refers to a comparable, and

28a

perhaps even wider, range of riot-oriented advocacy

as “encourage” in the context of § 2101(a)(2). It thus

suffers from the same overbreadth, subsuming an

abundance of hypothetical efforts to persuade that

aren’t likely to produce an imminent riot. As a result,

Brandenburg also protects speech having a mere

tendency to promote others to riot.

We reject the government’s argument that

“promote” is readily susceptible of a limiting

construction under Williams. In Williams, the

Supreme Court found that “promote” isn’t overbroad

within the meaning of 18 U.S.C. § 2252A, which

proscribes “[c]ertain activities relating to . . . child

pornography,” by relying on the distinctly

“transactional connotation” arising from the statutory

context at issue. See 553 U.S. at 294–95. The Court

reasoned that, in relation to an object (grammatically

speaking) like child pornography, promotion doesn’t

refer to “abstract advocacy” protected under

Brandenburg, but rather “to the recommendation of a

particular piece of purported child pornography with

the intent of initiating a transfer.” Id. at 299–300.

But that reasoning is inapposite in the context

of the Anti-Riot Act, where the object of the

promotional speech—the “riot” defined under

§ 2102(a)—is wholly non- transactional, and can’t

materialize until a sufficient number of people are

persuaded to show up at a certain future time and

place and engage in lawless conduct. In this statutory

context, we think that “promote” refers to abstract

advocacy.

We likewise reject the government’s invitation

to limit both “promote” and “encourage” to advocacy

29a

that is directed and likely to produce an imminent

riot.

For starters, we don’t think either verb is

“readily susceptible” of such an artificial limitation.

See Stevens, 559 U.S. at 481 (cleaned up). Moreover,

because advocacy that is direct and likely to produce

imminent lawlessness is already called “incitement,”

the government’s proposed course would effectively

require us to read these verbs as if they each said

“incite”—the same term already found under

§ 2101(a)(1). That, however, “requires rewriting, not

just reinterpretation,” and we may not “rewrite a law

to conform it to constitutional requirements.” See

Stevens, 559 U.S. at 481 (cleaned up).

With respect to the verb “organize,” however,

we reach a different outcome. As it pertains to an

event like a riot, “organize” is readily understood to

mean “to form or establish something . . . by . . .

bringing people together into a structured group,” “to

oversee the coordination of the various aspects of

something” or “to arrange the components of

something in a way that creates a particular

structure.” See Organize, Encarta Webster’s

Dictionary of the English Language (2d ed. 2004). We

think speech tending to organize a riot might thus

include communicating with prospective participants

about logistics, arranging travel accommodations, or

overseeing efforts to obtain weapons needed to carry

out the planned violence.

Yet as these definitions and examples indicate,

speech tending to “organize” others to riot consists not

of mere abstract advocacy, but rather of concrete aid.

For, by the time speech reaches the point of

organizing a riot, it has crossed the line dividing

abstract idea from material reality, even if its

30a

components must still be brought together,

coordinated, arranged, or otherwise structured into

form.

In other words, speech tending to organize a

riot serves not to persuade others to engage in a

hypothetical riot, but rather to facilitate the

occurrence of a riot that has already begun to take

shape. Such speech comes much closer to “preparing

a group for violent action” than merely “teaching . . .

the moral propriety” of violence in the abstract,

Brandenburg, 395 U.S. at 48, and may even be

characterized as the sort of “aiding and abetting of

criminal conduct” that doesn’t qualify for First

Amendment protection, see Rice, 128 F.3d at 242–43.

It follows that speech tending to organize a riot under

§ 2101(a)(2), unlike that of encouraging and

promoting a riot, doesn’t implicate mere advocacy of

lawlessness, and may thus be proscribed without

reference to Brandenburg.

ii.

Turning to § 2102(b), the defendants argue that

this provision, which provides an admittedly curious

gloss on the statute’s specific-intent element, is

overbroad in two ways. Since these arguments track

the provision’s two clauses, we take each in turn.

The first clause of § 2102(b) provides that the

terms “‘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.” 18 U.S.C. § 2102(b). Like the parties,

we understand this clause to gloss two more purposes

onto each subparagraph under § 2101(a)(1)–(4)

(excepting § 2101(a)(3),“to commit any act of violence

31a

in furtherance of a riot”). These additional purposes

are “urging” and “instigating” other persons to riot.

With respect to speech “instigating” others to

riot, we agree with the parties this verb is best

understood as a direct synonym for the dictionary

definition of “incite”— which, as noted, is even

narrower than Brandenburg’s. See Instigate, Encarta

Webster’s Dictionary of the English Language (2d ed.

2004)

(“to

cause

process

start”); see also Instigate, Merriam-Webster

Unabridged,

https://unabridged.merriamwebster.com/unabridged/instigate (last accessed July

30, 2020) (“provoke, incite”). In consequence, just as

speech “instigating” others to riot seems to be already

accounted for under § 2101(a)(1), so too is it consistent

with the First Amendment.

As to speech “urging” others to riot, however,

we agree with the defendants that this verb suffers

from a similarly inadequate relation between speech

and lawless action as “encourage” and “promote”

under § 2101(a)(2). After all, to “urge” means simply

to “encourage,” “advocate,” “recommend,” or “advise

. . . earnestly and with persistence.” Urge, Encarta

Webster’s Dictionary of the English Language (2d ed.

2004);

see

also

Urge,

Merriam-Webster

Unabridged,

https://unabridged.merriamwebster.com/unabridged/urge (last accessed July 30,

2020) (“to present in an earnest and pressing manner”

or “advocate or demand with importunity”). And

because earnestness and persistence don’t suffice to

transform such forms of protected advocacy into

speech that is likely to produce imminent lawless

action, Brandenburg renders the purpose of “urging”

others to riot overbroad.

32a

The second clause of § 2102(b) provides that the

terms “‘to incite a riot’, or ‘to organize, promote,

encourage, participate in, or carry on a riot’ . . . 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). Phrased in

simpler terms, this clause provides that each of these

purposes under § 2101(a) shall not be deemed to

encompass the mere advocacy of ideas or beliefs not

involving advocacy of violence.

The defendants argue that the last phrase of

this clause, beginning with “not involving,” is

overbroad. They point out that “mere advocacy of the

use of force or violence does not remove speech from

the protection of the First Amendment” in a

Brandenburg world.

See NAACP v. Clairborne

Hardware Co., 458 U.S. 886, 927 (1982) (emphasis

omitted). And they contend that, owing to the doublenegative construction of the second clause of

§ 2102(b), the final phrase must be construed as

affirmatively criminalizing mere advocacy of violence,

running afoul of its protected status.

The government concedes that mere advocacy

of violence is protected speech under Brandenburg,

but argues that the phrase beginning with “not

involving” needn’t be read to affirmatively criminalize

such advocacy. In the government’s view, because the

second clause of § 2102(b) starts with “shall not be

deemed,” the entire clause can be limited to

subtracting from, without adding onto, the purposes

of inciting, organizing, promoting, encouraging,

participating in, and carrying on a riot. So confined,

33a

the government posits that the second clause’s

exclusion of mere advocacy of violence can be read

neither to affirmatively criminalize nor to

affirmatively exempt such advocacy. And since the

First Amendment already exempts it, the Anti-Riot

Act doesn’t have to.

We think the last phrase of the second clause

of § 2102(b) isn’t “readily susceptible” of the

government’s proposed limiting construction. See

Stevens, 559 U.S. at 481 (cleaned up). Rather, under

the familiar rule that a double negative cancels itself

out, the natural meaning of this phrase is that the

purposes of inciting, organizing, promoting,

encouraging, participating in, and carrying on a riot

“shall . . . be deemed to mean the mere . . . advocacy

of any act or acts of violence or assertion of the

rightness of, or the right to commit, any such act or

acts.” See 18 U.S.C. § 2102(b) (emphasis added); cf.,

e.g., House v. Bell, 547 U.S. 518, 538 (2006)

(demonstrating this familiar rule in action).

Indeed, as our sister circuit herself pointed out

in considering this issue, just as “[a] true negation of

a negation is an affirmation,” so too “a careful

exclusion from an exclusion” results “in an inclusion.”

Dellinger, 472 F.2d at 363. And while the Dellinger

majority opted to avoid overbreadth by assuming that

such inclusion doesn’t follow with equal force from the

double negative here, we agree with the separate

opinion in that case that such a view strains common

sense, and thus amounts to judicial rewriting. See id.

at 412 (Pell, J., concurring in part and dissenting in

part).

34a

Moreover, because Congress drafted the AntiRiot Act against the backdrop of a long line of cases,

from Whitney to Dennis, in which mere advocacy of

violence was regularly held to be unprotected, we find

it all the more likely that the exclusion found in the

final phrase of § 2102(b) means to attach criminal

consequences to such advocacy, and isn’t just

indifferent to it. We therefore hold this language to be

overbroad as well.

The defendants’ final overbreadth argument

concerns the Anti-Riot Act’s definition of a “riot”

under § 2102(a). They contend that this definition is

overbroad because it contains the clear-and-presentdanger test that Brandenburg displaced from the

prevailing incitement test. The government responds

that, while the clear-and-present-danger test is no

longer part of the prevailing incitement test, it’s

nonetheless flexible enough that we may construe it

consistently with Brandenburg’s tightened standard.

In our view, however, § 2102(a)’s clear-andpresent-danger test doesn’t relate to the same things

under the Anti-Riot Act as it did under the First

Amendment. Recall that, before being replaced by the

Brandenburg test, the clear-and-present-danger test

referred to the relation between unprotected

incitement and “the substantive evils that Congress

has a right to prevent”—i.e., the lawless action being

incited. See Schenck, 249 U.S. at 52. And while

Brandenburg tightened the required relation between

those things, it didn’t alter the fact that the object of

any unprotected incitement is simply “lawless action”

in general. See 395 U.S. at 448.

35a

In the context of the Anti-Riot Act, the object

corresponding to “lawless action” under Brandenburg

is (of course) the “riot” defined under § 2102(a). Yet

the relation between incitement and rioting under the

statute isn’t governed by § 2102(a)’s clear-andpresent-danger test, but rather directly by the verb

“incite” under § 2101(a)(1) (which, as noted, provides

the necessary relation between speech and lawless

action all by itself).

To revisit § 2102(a), that provision defines two

types of riot: the first based on one or more “acts of

violence,” 18 U.S.C. § 2102(a)(1), and the second based

on one or more “threats” to commit one or more acts

of violence, id. § 2102(a)(2). With respect to each type,

the clear-and-present-danger test governs only the

relation between the act or threat of violence forming

the core of the riotous conduct and the resulting risk

of “damage or injury” to the “property” or “person” of

any other individual. See id. § 2102(a). So, whatever

the precise measure of risk required by that test, a

“riot” entails at bottom an act or a threat of violence

presenting “grave danger” to others. Cf. United States

v. Matthews, 419 F.2d 1177, 1180–82, 1184 (D.C. Cir.

1969) (discussing the District of Columbia’s anti- riot

statute, passed by Congress in late 1967, which

defines a “riot” similarly to § 2102(a) as a public

disturbance “which by tumultuous and violent

conduct or the threat thereof creates grave danger of

damage or injury to property or persons”).

We think it plain that both types of riot

describe conduct that Congress had the right to

prevent in enacting the Anti-Riot Act. Indeed,

regardless of any risk of bodily injury or property

damage, acts of violence against others in and of

36a

themselves constitute well- recognized forms of

unlawful conduct, finding no protection under the

first or any other amendment. As for “threats of

violence,” they too “are outside the First Amendment”

under the doctrine of true threats, which “protects

individuals” from even “the possibility that the

threatened violence will occur.” R.A.V. v. City of St.

Paul, 505 U.S. 377, 388 (1992); see also Virginia v.

Black, 538 U.S. 343, 359–60 (2003) (plurality opinion)

(discussing “true threats”). And we have little trouble

reading “threat” under § 2102(a) to contemplate only

such true threats, which are frequently made

unlawful as well.

Thus, like our sister circuit, we conclude that

Congress in § 2102(a) has managed to describe “a

disorder of a type which is enough of an assault on the

property and personal safety interests of the

community” that inciting, engaging in, or aiding and

abetting one “can be made a criminal offense.” See

Dellinger, 472 F.2d at 360–61. Accordingly, we

discern no overbreadth in the statute’s definition of a

riot.

Having found that the Anti-Riot Act is

overbroad vis-à-vis Brandenburg insofar as it

proscribes speech tending to “encourage” or “promote”

a riot, as well as speech “urging” others to riot or

“involving” mere advocacy of violence, we turn now to

consider whether the amount of overbreadth is

substantial, “not only in an absolute sense, but also

relative to the statute’s plainly legitimate sweep.”

Williams, 553 U.S. at 292. We conclude that it is.

37a

To be sure, the Anti-Riot Act has a plainly

legitimate sweep. The statute validly proscribes not

only efforts to engage in such unprotected speech as

inciting, instigating, and organizing a riot, but also

such unprotected conduct as participating in,

carrying on, and committing acts of violence in

furtherance of a riot, as well as aiding and abetting

any person engaged in such conduct. In other words,

it encompasses just about every form of unprotected

activity in relation to a riot. And the statute’s

conduct-related applications appear to form the basis

of every reported prosecution under it.

Yet the Anti-Riot Act nonetheless sweeps up a

substantial amount of protected advocacy. Whereas

Brandenburg removes advocacy relating to a riot from

the protection of the First Amendment only if it is

directed and likely to produce an imminent riot, the

statute purports to regulate any speech tending

merely to “encourage,” “promote,” or “urge” others to

riot, as well as mere advocacy of any act of violence.

Altogether, these areas of overbreadth cover the

whole realm of advocacy that Brandenburg protects,

and dwarfs that which it left unprotected. Thus,

while the statute may have been perfectly consistent

with the contemporary understanding of the First

Amendment when it was enacted, Brandenburg

causes it to encroach substantially upon free speech.

Having concluded that the Anti-Riot Act is

substantially overbroad in part, we turn at last to

consider whether the overbroad portions of the

statute are severable from the constitutionally valid

remainder; if so, only those portions are “to be

38a

invalidated.” See Ferber, 458 U.S. at 769 n.24. We

agree with the government that they are.

Because facial invalidation “is strong medicine”

that serves “as a last resort,” id. at 769, the “normal

rule” in the case of a partially unconstitutional

statute is “that partial, rather than facial,

invalidation is the required course,” Free Enter. Fund.

v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477,

508 (2010) (cleaned up). Indeed, the Supreme Court

has repeatedly cautioned that “whenever an act of

Congress contains unobjectionable provisions

separable from those found to be unconstitutional,” it

is our “duty” as a court to “maintain the act in so far

as it is valid.” Regan v. Time, Inc., 468 U.S. 641, 652

(1984) (plurality opinion) (cleaned up); see also Seila

Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.

2183, 2209 (2020) (plurality opinion) (“Generally

speaking, when confronting a constitutional flaw in a

statute, we try to limit the solution to the problem,

severing any problematic portions while leaving the

remainder intact.” (cleaned up)).

As the Court recently observed, the Judiciary’s

“power and preference” for partial invalidation “has

been firmly established since Marbury v. Madison.”

Barr v. Am. Ass’n of Political Consultants, Inc., 140 S.

Ct. 2335, 2350 (2020) (plurality opinion). From then

to the present, the Court’s cases have developed “a

strong presumption of severability.” Id.; see, e.g.,

Bank of Hamilton v. Dudley’s Lessee, 27 U.S. (2 Pet.)

492, 526 (1829) (“If any part of the act be

unconstitutional, the provisions of that part may be

disregarded while full effect will be given to such as

are not repugnant to the constitution of the United

States . . . .”).

39a

Thus, “[e]ven in the absence of a severability

clause, the traditional rule is that the

unconstitutional provision must be severed unless the

statute created in its absence is legislation that

Congress would not have enacted.” Seila Law, 140 S.

Ct. at 2209 (cleaned up). Put differently, “we must

retain those portions of the [a]ct that are (1)

constitutionally valid, (2) capable of functioning

independently, and (3) consistent with Congress’

basic objectives in enacting the statute.” United

States v. Booker, 543 U.S. 220, 259 (2005) (cleaned

up); see also Seila Law, 140 S. Ct. at 2209.

Several of the Court’s cases illustrate just how

“surgical” we ought to be in severing unconstitutional

language from an otherwise inoffensive statute. See

Barr, 140 S. Ct. at 2350–51. Consider Regan, in

which the Court held that the “purpose requirement”

of a prior version of 18 U.S.C. § 504—which

authorized the use of certain photographic

reproductions of currency (otherwise proscribed

under 18 U.S.C. § 474) “for philatelic, numismatic,

educational, historical, or newsworthy purposes”—

constituted an invalid time, place, and manner

regulation under the First Amendment. See 468 U.S.

at 647–48, 659 (cleaned up). But finding the

remainder of the statute constitutional, a fivemember majority of the Court (including Justice

Stevens, who concurred in the judgment in relevant

part) found that the proper fix was to excise the

“select[] words” making up the purpose requirement,

even though they formed part of “a single integrated

statutory phrase” in which they flowed directly into

the words of another element. See id. at 666–67

40a

(Brennan, J., concurring in part and dissenting in

part).10

More recently, in Barr, a seven-member

majority of the Court (including Justices Breyer,

Ginsburg, Kagan, and Sotomayor, who concurred in

the judgment with respect to severability) agreed that

the government-debt exception to the Telephone

Consumer Protection Act’s robocall restriction—

which the Court found also constituted an invalid

time, place, and manner regulation, see 140 S. Ct. at

2346—could be excised from the remainder of the

statute, even though it consisted of a sentence

fragment appended to a single subparagraph, see id.

at 2344–45 & n.2, 2352–54; cf. 47 U.S.C.

§ 227(b)(1)(A)(iii). And while the Court noted that the

statute included a severability clause, see 47 U.S.C.

§ 608, the Court made clear that it would have excised

the government-debt exception all the same under the

general “presumption of severability,” 140 S. Ct. at

2252–53.

Applying these principles to the Anti-Riot Act,

we hold that the appropriate remedy is to invalidate

no more than the language responsible for the

statute’s overbreadth. That language consists of the

words “encourage,” “promote,” and “urging” under §§

2101(a)(2) and 2102(b), as well as the final phrase of

§ 2102(b), beginning with the words “not involving”

and continuing through the end of that provision.

As for Justice Brennan, even his concern with such selective

excision would have been quelled if Congress had offset the

purpose requirement from its surrounding provision with the

disjunctive “or.” See id. at 667–68.

41a

Severed accordingly, these provisions of the statute

look like this:

(a) Whoever travels in interstate or

foreign commerce or uses any facility of

interstate

foreign

commerce,

including, but not limited to, the mail,

telegraph,

telephone,

radio,

television, with intent—

....

(2) to organize, promote, encourage,

participate in, or carry on 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) of this

paragraph[]—

Shall be fined under this title, or

imprisoned not more than five years, or

both.

18 U.S.C. § 2101(a)(2).

As used in this chapter, the 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

42a

advocacy of any act or acts of violence or

assertion of the rightness of, or the right

to commit, any such act or acts.

Id. § 2102(b).

Besides

these

discrete

instances

overbreadth, the remainder of the Anti-Riot Act “is

perfectly valid.” See Booker, 543 U.S. at 258. It’s also

capable of functioning independently and thus “fully

operative without the offending” language. See Seila

Law, 140 S. Ct. at 2209. After all, that language

makes up only a fraction of the statute’s specificintent element, consisting of just two items from a

menu of alternative purposes under § 2101(a)(1)–(4),

plus two additional purposes glossed onto these by

way of § 2102(b).

Moreover, though the Anti-Riot Act’s overbroad

language consists of select words within two

subsections left otherwise intact, it nonetheless lends

itself to being cleanly excised from these

“surrounding” provisions. Cf. Barr, 140 S. Ct. at 2352

& n.9 (noting that, while “it is fairly unusual for the

remainder of a law not to be operative,” a statute may

occasionally be drafted such that a “surrounding or

connected provision” must be severed alongside the

“offending provision”).

Whereas “encourage,”

“promote,” and “urging” are each set off from their

adjoining purposes by the disjunctive “or” (in addition

to commas where appropriate), the last phrase of §

2102(b) is easily dropped off from the rest of the clause

in which it appears, much like the government-debt

exception severed in Barr. The remaining statute

thus makes for smooth reading.

43a

Further, such minimal severance is consistent

with Congress’s basic objective in enacting the AntiRiot Act. We think that objective is to proscribe, to

the maximum permissible extent, unprotected speech

and conduct that both relates to a riot and involves

the use of interstate commerce. And while Congress

drafted the statute to encompass the full scope of such

unprotected speech as of 1968, our partial

invalidation serves only to remove the discrete

purposes that Brandenburg rendered overbroad,

thereby trimming the statute’s scope without altering

its meaning. We thus have no doubt that, if Congress

could have foreseen the Court’s decision in

Brandenburg, it would have readily preferred to enact

this appropriately narrowed version of the statute

than none at all.

The defendants’ arguments against partial

invalidation rely on their view that the Anti-Riot Act

is significantly more overbroad than we have found it

to be, including with respect to its second overt-act

element and its definition of a riot. But while these

elements of the statute might prove difficult to sever

if in fact they were overbroad, we are sure Congress

“would prefer that we use a scalpel rather than a

bulldozer” to cure the much more limited overbreadth

we have identified. See Seila Law, 140 S. Ct. at 2210–

11.

Accordingly,

because

the

defendants’

overbreadth challenge leaves the bulk of the Anti-Riot

Act intact, we proceed to consider their remaining

challenge to the statute.

44a

IV.

As an alternative ground for facial

invalidation, the defendants contend that the AntiRiot Act is void for vagueness under the Due Process

Clause of the Fifth Amendment. We disagree.

“It is a basic principle of due process that an

enactment is void for vagueness if its prohibitions are

not clearly defined.” Grayned v. City of Rockford, 408

U.S. 104, 108 (1972). The vagueness doctrine

therefore “requires that a penal statute define the

criminal offense with sufficient definiteness that

ordinary people can understand what conduct is

prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” Kolender

v. Lawson, 461 U.S. 352, 357 (1983).

These twin concerns of inadequate notice and

arbitrary or discriminatory enforcement are

especially pronounced “where a vague statute abuts

upon sensitive areas of basic First Amendment

freedoms” because ambiguity “inevitably lead[s]

citizens to steer far wider of the unlawful zone than if

the boundaries . . . were clearly marked,” thereby

chilling protected speech. See Grayned, 408 U.S. at

109 (cleaned up). That said, “perfect clarity and

precise guidance have never been required even of

regulations that restrict expressive activity.”

Williams, 553 U.S. at 304 (cleaned up).

The defendants argue that the Anti-Riot Act is

unduly vague primarily with respect to its definition

of a riot under § 2102(a). Not so. In our view, the

definition provides more than the “minimal

guidelines” necessary to provide a sufficient standard

45a

of conduct and enforcement for purposes of due

process. See Kolender, 461 U.S. at 358.

Recall that § 2102(a) describes two types of

“riot”: one based on actual violence and another based

on a threat of violence. See 18 U.S.C. § 2102(a). Each

type breaks down into roughly four elements. An

actual-violence riot consists of (1) a “public

disturbance,” (2) involving one or more “acts of

violence,” (3) committed “by one or more persons” who

form part of a group “of three or more persons,” and

(4) that either “result[s] in[] damage or injury to the

property . . . or . . . person of any other individual” or

“constitute[s] a clear and present danger” of such

damage or injury. See id. § 2102(a)(1). Similarly, a

threat-of-violence riot consists of (1) a “public

disturbance,” (2) involving one or more “threats” to

commit an act of violence, (3) committed “by one or

more persons” who form part of a group of “three or

more persons” and have “the ability of immediate

execution” of the threat or threats, and (4) that, if

executed, would either result in “damage or injury to

the property . . . or . . . person of any other individual”

or constitute a clear and present danger of such

damage or injury. See id. § 2102(a)(2).

The defendants largely take issue with the

term “public disturbance,” which they contend invites

“wholly subjective judgments” about the scope of

proscribed conduct, much as with statutes that the

Court has voided for criminalizing “‘annoying’ or

‘indecent’” conduct. See Williams, 553 U.S. at 306

(citing Coates v. Cincinnati, 402 U.S. 611, 614 (1971);

Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870–

71 & n.35 (1997)). But even assuming that a statute

criminalizing mere public disturbances might be

46a

unduly vague, we believe that the other components

of § 2102(a) provide sufficient “narrowing context.”

See Williams, 553 U.S. at 306.

In particular, § 2102(a)’s requirement that the

public disturbance involve either an act or threat of

violence renders the scope of proscribed conduct

significantly more definite. Indeed, because the word

“violence” has a settled and objective meaning, the

definition’s violence element serves to exclude a wide

range of conduct that might constitute a “public

disturbance” judged subjectively—such as “making

an unnecessary or distracting noise,” see Breach of the

Peace, Black’s Law Dictionary (10th ed. 2014); or, as

the defendants hypothesize, causing a “public uproar”

on Twitter, see Defs.’ Br. at 31 n.5.

In fact, because any act or threat of violence

inherently constitutes a disturbance or breach of the

peace, the definition’s public-disturbance element

appears in context to mean simply that the act or

threat of violence must occur in a public setting—as,

for instance, with each of the three rallies at which

the defendants conducted their acts of violence. So

construed, the core elements of § 2102(a) leave little

to the imagination.

The statute’s definition of a riot is further

narrowed by § 2102(a)’s remaining elements. Under

the third, the act or threat of violence constituting the

public disturbance must be committed by someone

who forms part of a group of at least three people,

thereby ensuring that more ordinary instances of

violence, accomplished by less than a crowd of three,

don’t rise to the level of riotous conduct. Under the

fourth, the act or threat of violence must either cause

47a

bodily injury or property damage or create a clear and

present danger of the same, thereby excluding

violence that entails an insignificant or remote risk of

harm to others.

Altogether, these elements adequately define

the range of conduct that constitutes a riot within the

meaning of § 2102(a)—which, after all, differs little

from definitions that courts have upheld under

similar statutes. See Matthews, 419 F.2d at 1180–82

(finding “scant room . . . for mistaking the conduct

contemplated by” the District of Columbia’s anti-riot

statute, which, as noted, defines a “riot” in similar

terms); State v. Beasley, 317 So.2d 750, 752–53 (Fla.

1975) (rejecting vagueness challenge to Florida

statute incorporating common law definition of a riot

to mean “a tumultuous disturbance of the peace by

three or more persons, assembled and acting with a

common intent, either in executing a lawful private

enterprise in a violent and turbulent manner . . . or in

executing an unlawful enterprise in a violent and

turbulent manner”).

The defendants fare no better in contending

that § 2102(a) is rendered unduly vague by its

inclusion of the clear-and-present-danger test in

relation to the threat of injury posed by the core act

or threat of violence. While the defendants point out

that this test requires an inquiry into the “imminence

and magnitude,” as well as the “likelihood,” of the risk

of injury posed by the violence, see Landmark

Commc’ns. Inc. v. Virginia, 435 U.S. 829, 843 (1978),

they fail to show that this inquiry is any more

“imprecise” than similar tests found in many

“perfectly constitutional statutes,” such as “serious

potential risk” or “substantial risk,” see Sessions v.

48a

Dimaya, 138 S. Ct. 1204, 1214 (2018) (cleaned up).

Indeed, even the Brandenburg test demands an

analogous inquiry into these risk-oriented variables.

Nor is § 2102(a) unduly vague because “close

cases can be envisioned” under the clear-and-presentdanger test, since “[c]lose cases can be imagined

under virtually any statute.” See Williams, 553 U.S.

at 305–06. For that reason, the vagueness doctrine

demands only that we be able to discern what sort of

“incriminating fact” must be established, even if it

may prove difficult to determine whether that fact

“has been proved” in some cases. Id. at 306. The clearand-present-danger test satisfies this demand.

The defendants’ next attack on § 2102(a),

which focuses on the requirement that any threat of

violence undergirding a riot be capable of immediate

execution, is similarly misguided. As with the clearand-present-danger inquiry, determining whether a

particular threat of violence could have been carried

out forthwith entails the same sort of “abstract

assessment[s] of chance,” Defs.’ Br. at 33, that the law

asks judges to make all the time.

The defendants’ reliance on Johnson v. United

States, 135 S. Ct. 2551 (2015) is therefore misplaced.

In Johnson, the Supreme Court found the residual

clause of the Armed Career Criminal Act void for

vagueness not because it required a “judicial

assessment of risk,” but rather because it tethered

such assessment “to a judicially imagined ‘ordinary

case’ of a crime, not to real-world facts or statutory

elements.” Id. at 2557; accord Dimaya, 138 S. Ct. at

1213–14. But where, as here, the relevant qualitative

standard is assessed by reference to “real-world

49a

conduct,” the vagueness doctrine takes no offense.

Johnson, 135 S. Ct. at 2561; accord Dimaya, 128 S.

Ct. at 1215–16.

The defendants next assert that the same three

verbs under § 2101(a)(2) that we discussed earlier—

“to organize, promote, [or] encourage,” are unduly

vague as well. Having already excised the latter two

of these verbs, we consider only “organize.” And here,

the defendants fail to demonstrate any ambiguity in

this familiar term, which they themselves ask us to

read (as we do) “with the plain meaning that persons

of ordinary intelligence would assign” to it. Defs.’ Br.

at 35. Instead, the defendants largely repackage their

overbreadth argument, which we have rejected on the

ground that speech tending to organize a riot doesn’t

constitute protected advocacy.

Finally, the defendants posit that the Anti-Riot

Act violates due process because it doesn’t require the

second overt act (the one beyond traveling in or using

a facility of interstate or foreign commerce) to concur

in time with specific intent to carry out a purpose set

forth under § 2101(a)(1)–(4). But we agree with the

government, as well as three other courts, that the

statute is best read to require both overt acts to

coincide with the same specific intent. See United

States v. Markiewicz, 978 F.2d 786, 813 (2d Cir. 1992);

Dellinger, 472 F.2d at 393; Hoffman, 334 F. Supp. at

509. Indeed, as the element itself provides, the act

must be performed “for any purpose specified” under

§ 2101(a)(1)–(4). 18 U.S.C. § 2101(a) (emphasis

added). We thus have little trouble concluding that

this element must be accomplished with specific

intent to achieve one of those purposes.

50a

So far, we have held that the Anti-Riot Act is

substantially overbroad to the extent that it

proscribes the attempt to engage in speech tending to

“encourage” or “promote” a riot under § 2101(a)(2), as

well as speech “urging” others to riot or “involving”

mere advocacy of violence under § 2102(b). But we

have also held that the statute is severable to the

same partial extent, allowing the remainder to be left

intact. Finally, we have held that the statute isn’t

void for vagueness. All that remains is to consider the

appropriate disposition of the defendants’ convictions.

That disposition, we hold, is to affirm.

In arguing that their convictions must be

vacated even though the Anti-Riot Act remains

largely operative, the defendants assert that the

indictment and, by extension, their guilty pleas

(which invoke “Count 1 of the Indictment,” J.A. 238,

250) are premised on a conspiracy to violate the

statute as a whole, without specifying which of its

alternative purposes they conspired to (and in fact

did) carry out. But it’s well-established that a

conviction under a statute that “specifies several

alternative ways” to commit an offense “will stand” as

long as the record evidence suffices to prove “one or

more of the means of commission,” even if the

indictment alleged “the several ways” in conjunction.

United States v. Brandon, 298 F.3d 307, 314 (4th Cir.

2002) (cleaned up); accord Turner v. United States,

396 U.S. 398, 420 (1970); cf. Mathis v. United States,

136 S. Ct. 2243, 2249 (2016) (describing such

statutes).

51a

That’s essentially the situation we face here,

except that a few of the Anti-Riot Act’s alternative

purposes happen to be overbroad and, thus, invalid.

And because the record, as we explain, establishes

conclusively that the defendants’ substantive offense

conduct falls under the statute’s surviving purposes,

their convictions must stand.

Before accepting the defendants’ guilty pleas,

the district court was required to “determine that

there [was] a factual basis” for them, Fed. R. Crim. P.

11(b)(3), which it did by accepting the defendants’

respective Statements of Offense.

In those

Statements, the defendants stipulated that the

substantive offense conduct underlying their

respective conspiracy convictions consists (beyond

such overt acts as traveling to rallies through

interstate commerce, conducting combat training,

and buying supplies) of engaging “in violent

confrontations,” J.A. 227, which is to say “physical

conflict,” J.A. 232, with counter-protestors at each of

the three rallies discussed above. Specifically, the

defendants admitted to having each (as part of an

assemblage of three or more) “personally committed

multiple violent acts”—including but not limited to

pushing, punching, kicking, choking, head-butting,

and otherwise assaulting numerous individuals, and

none of which “were in self-defense”—in Huntington

Beach, Berkeley, and Charlottesville. J.A. 231, 236.

Such substantive offense conduct qualifies

manifestly as “commit[ting] any act of violence in

furtherance of a riot” within the ordinary meaning of

§ 2101(a)(3), as well “participat[ing]

in”

and

“carry[ing] on a riot” within the ordinary meaning

of § 2101(a)(2)—three wholly conduct-oriented

52a

purposes left unscathed by our partial invalidation

of the statute. By the same token, the defendants’

offenses have manifestly nothing to do with speech

tending to encourage, promote, or urge others to riot;

mere advocacy of violence; or any other First

Amendment activity; as the district court properly

found. See Daley, 378 F. Supp. 3d at 559 (noting that

the First Amendment doesn’t “immunize[] violence,”

even “within the broader context of a political

demonstration”). The defendants muster no

argument to the contrary.

Moreover, as noted, the defendants have

necessarily conceded—consistent with the “usual

judicial practice” in overbreadth cases, see Fox, 492

U.S. at 484–85; Preston, 660 F.3d at 737–38—that the

Anti-Riot Act poses no constitutional concern as

applied to their own conduct. And indeed, none of the

defendants’ overbreadth theories, including those we

have rejected, provide any basis for an as-applied

challenge on the facts to which they have stipulated.

It follows that anything less than facial invalidation

of the statute affords the defendants no relief from

their convictions. Cf. Regan, 468 U.S. at 659 (holding

that 18 U.S.C. § 504 as partially invalidated wasn’t

unconstitutional “as applied” to the challenger, whose

offense conduct qualified under “the remaining

portions of the statute”).

For the foregoing reasons, the judgments of the

district court are

AFFIRMED.

53a

FILED: August 24, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4550(L)

(3:18-cr-00025-NKM-JCH-2)

UNITED STATES OF AMERICA

Plaintiff - Appellee

MICHAEL PAUL MISELIS

Defendant - Appellant

-----------------------------THE FREE EXPRESSION FOUNDATION, INC.

Amicus Supporting Appellant

No. 19-4551

(3:18-cr-00025-NKM-JCH-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

54a

BENJAMIN DRAKE DALEY

Defendant - Appellant

-----------------------------THE FREE EXPRESSION FOUNDATION, INC.

Amicus Supporting Appellant

JUDGMENT

In accordance with the decision of this court,

the judgments of the district court are affirmed.

This judgment shall take effect upon issuance

of this court's mandate in accordance with Fed. R.

App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

55a

ENTERED: July 26, 2019

UNITED STATES DISTRICT COURT

Western District of Virginia

UNITED STATES OF AMERICA

vs.

MICHAEL PAUL MISELIS

JUDGMENT IN A CRIMINAL CASE

Case Number: DVAW318CR000025-002

Case Number:

USM Number: 77038112

Warren Cox, Esq.

Defendant’s Attorneys

THE DEFENDANT

J Pleaded guilty to count(s) one

F Pleaded nolo contendere to count(s)

which was accepted by the court.

F Was found guilty on count(s)

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title &

Section

18 USC 371

Nature of

Offense

Conspiracy

to Riot

Offense Count

Ended

10/10/2018

56a

The defendant is sentenced as provided in

pages 2 through 7 of this judgment. The sentence is

imposed pursuant to the Sentencing Reform Act of

1984.

F The defendant has been found not guilty on

count(s)

J Count(s) two J is F are dismissed on the motion

of the United States.

It is ordered that the defendant must notify the

United States Attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court and United States attorney of any

material changes in economic circumstances.

July 19, 2019

Date of Imposition of Judgment

/s/

Signature of Judge

NORMAN K. MOON,

SENIOR U.S. DISTRICT JUDGE

Name and Title of Judge

7/26/2019

Date

IMPRISONMENT

The defendant is hereby committed to the

custody of the Federal Bureau of Prisons to be

imprisoned for a total term of Twenty-seven (27)

months;

57a

J The court makes the following recommendations

to the Bureau of Prisons:

The defendant be

designated at Dublin, California, as close to his home

in Stockton, California as possible.

J The defendant is remanded to the custody of the

United States Marshal.

FThe defendant shall surrender to the United

States Marshal for this district:

F at

Fa.m.

F p.m. on:

F as notified by the United States Marshal.

F The defendant shall surrender for service of

sentence at the institution designated by the Bureau

of Prisons:

F before 2 p.m. on

F as notified by the United States Marshal.

F as notified by the Probation Office.

RETURN

I have executed this Judgment as follows:

Defendant delivered on

, with a certified copy of this

judgment.

UNITED STATES MARSHAL

By:

DEPUTY UNITED STATES MARSHAL

58a

SUPERVISED RELEASE

Upon release from imprisonment, you will be on

supervised release for a term of :

Two (2) years.

MANDATORY CONDITIONS

1. You must not commit another federal, state or

local crime.

2.F you must make restitution in accordance with

sections 3663 and 3663A, or any other statue

authorizing a sentence of restitution. (check if

applicable)

3. You must not unlawfully possess a controlled

substance.

4. You must refrain from any unlaswful use of a

controlled substance. You must submit ot one drug

test iwthin 15 days of release from improsionment

and at least two periodic drug tests thereafter, as

determined by the court.

FThe above drug testing condition is

suspended,

based

the

court’s

determination that you pose a low risk of

future substance abuse. (check if applicable)

5. J You must cooperate in the collection of DNA as

directed by the probation officer. (check if

applicable)

6. F You must comply with the requirements of the

Sex Offender Registration and Notification Act

(34 U.S.C. §20901, et seq.) as directed by the

probation officer, the Bureau of Prisons, or any

state sex offender registration agency in the

59a

location where you reside, work, are a student,

or were convicted of a qualifying offense. (check

if applicable)

7. F You must participate in an approved program

of domestic violence. (check if applicable)

You must comply with the standard conditions that

have been adopted by this court as well as any other

conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply

with the following standard conditions of supervision.

These conditions are imposed because they establish

the basic expectations for your behavior while on

supervision and identify the minimum tools needed

by probation officers to keep informed, report to the

court about, and bring about improvements in your

conduct and condition.

You must report to the probation office in the

federal judicial district where you are

authorized to reside within 72 hours of your

release from imprisonment, unless the

probation officer instructs you to report to a

different probation office or within a different

time frame.

After initially reporting to the probation office,

you will receive instructions from the court or

the probation officer about how and when you

must report to the probation officer, and you

must report to the probation officer as

instructed.

60a

You must not knowingly leave the federal

judicial district where you are authorized to

reside without first getting permission from

the court or the probation officer.

You must answer truthfully the questions

asked by your probation officer.

You must live at a place approved by the

probation officer. If you plan to change where

you live or anything about your living

arrangements (such as the people you live

with), you must notify the probation officer at

least 10 days before the change. If notifying the

probation officer in advance is not possible due

to unanticipated circumstances, you must

notify the probation officer within 72 hours of

becoming aware of a change or expected

change.

You must allow the probation officer to visit

you at any time at your home or elsewhere, and

you must permit the probation officer to take

any items prohibited by the conditions of your

supervision that he or she observes in plain

view.

You must work full time (at least 30 hours per

week) at a lawful type of employment, unless

the probation excuses you from doing so. If you

do not have full-time employment you must try

to find full-time employment, unless the

probation officer excuses you from doing so. If

you plan to change where you work or anything

about your work (such as your position or job

responsibilities), you must notify the probation

officer at least 10 days before the change. If

61a

notifying the probation officer at least 10 days

in advance is not possible due to unanticipated

circumstances, you must notify the probation

officer within 72 hours of becoming aware of a

change or expected change.

You must not communicate or interact with

someone you know is engaged in criminal

activity. If you know someone has been

convicted of a felony, you must not knowingly

communicate or interact with that person

without first getting the permission of the

probation officer.

If you are arrested or questioned by a law

enforcement officer, you must notify the

probation officer within 72 hours.

10.

You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was

designed, or was modified for, the specific

purpose of causing bodily injury or death to

another person such as nunchakus or tasers).

11.

You must not act or make any agreement with

a law enforcement agency to act as a

confidential human source or informant

without first getting the permission of the

court.

12.

If the probation officer determines that you

pose a risk to another person (including an

organization), the probation officer may

require you to notify the person about the risk

and you must comply with that instruction.

The probation officer may contact the person

62a

and confirm that you have notified the person

about the risk.

13.

You must follow the instructions of the

probation officer related to the conditions of

supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the

conditions specified by the court and has provided me

with a written copy of this judgment containing these

conditions. For further information regarding these

conditions, see Overview of Probation and Supervised

Release Conditions, available at www.uscourts.gov.

Defendant’s Signature

Date _________________

SPECIAL CONDITIONS OF SUPERVISION

1. The defendant shall pay any special assessment,

fine, and/or restitution that is imposed by this

judgment.

2. The defendant shall provide the probation officer

with access to any requested financial information.

3. The defendant shall not incur new credit charges or

open additional lines of credit without the approval of

the probation officer.

4. The defendant shall participate in a program

oftestingandtreatmentforsubstanceabuse,asapproved

bytheprobationofficer, until such time as the

defendant has satisfied all requirements of the

program.

63a

5. The defendant shall reside in a residence free of

firearms, ammunition, destructive devices,

dangerous weapons.

6. The defendant shall submit to warrantless search

and seizure of person and property as directed by the

probation officer, to determine whether the

defendant is in possession of firearms and illegal

controlled substances.

7. The defendant shall submit to warrantless search

and seizure of person and property as directed by the

probation office or other law enforcement officer,

whenever such officer has reasonable suspicion that

the defendant is engaged in criminal activity.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the total criminal monetary

penalties under the schedule of payments on Sheet 6.

Assessment

TOTALS $100.00

JVTA

Fine Restitution

Assessment*

F The determination of restitution is deferred until

An Amended Judgment in a Criminal

Case (AO245C) will be entered after such

determination.

F The defendant must make restitution (including

community restitution) to the following payees in

the amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

64a

order or percentage payment column ·below.

However,

pursuant

U.S.C.

§ 3664(i), all nonfederal victims must be paid

before the United States is paid.

Name of

Payee

Total

Loss*

Restitution Priority or

Ordered

Percentage

TOTALS

F Restitution amount ordered pursuant to plea

agreement $

F The defendant must pay interest on restitution

and a fine of more than $2,500, unless the

restitution or fine is paid in full before the

fifteenth day after the date of judgment, pursuant

to 18 U.S.C. §3612(f). All of the payment options

on Sheet 5 may be subject to penalties for

delinquency and default, pursuant to 18 U.S.C.

§3612(g).

F The court determined that the defendant does not

have the ability to pay interest and it is ordered

that:

The interest requirement is waived for the

F fine F restitution.

F The interest requirement for the

F restitution is modified as follows:

fine

65a

*Justice for Victims of Trafficking Act of 2015, Pub. L.

No. 114-22.

**Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18

for offenses committed on or after September 13,

1994, but before April 23, 1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties is

due as follows:

A J Lump sum payment of $100.00 immediately,

balance due

F not later than

, or

F in accordance F CFD, F E, or F F below;

B F Payment to begin immediately (may be

combined with F C, F D, or F F below); or

C F Payment in equal ______ (weekly, monthly,

quarterly) installments of $

over a period of _____ (e.g., months or years), to

commence

(e.g., 30 or 60 days) after

the date of this judgment; or

D F Payment in equal

installments of no

less than

to commence (e.g., 30 or 60

days) days after release from imprisonment to

a term of supervision; or

E F Payment during the term of supervised release

will commence within (e.g., 30 or 60 days) after

release from imprisonment. The court will set

66a

the payment plan based on an assessment of

the defendant’s ability to pay at that time; or

F F During the term of imprisonment, payment in

equal

(e.g., weekly, monthly,

quarterly) installments of $

%of the defendant's income, whichever

is. greater

to commence

(e.g., 30 or 60 days) after the date of this

judgment; AND payment in equal

(e.g., weekly, monthly, quarterly) installments

of $

during the term of supervised

release, to commence

(e.g., 30 or 60

days) after release from imprisonment

G F Special instructions regarding the payment of

criminal monetary penalties:

Any installment schedule shall not preclude

enforcement of the restitution or fine order by the

United States under 18 U.S.C §§ 3613 and

3664(m).

Any installment schedule is subject to adjustment by

the court at any time during the period of

imprisonment or supervision, and the defendant shall

notify the probation officer and the U.S. Attorney of

any

change

the

defendant's

economic

circumstances that may affect the defendant's ability

to pay.

All criminal monetary penalties shall be made

payable to the Clerk, U.S. District Court, 210

Franklin Rd., Suite 540, Roanoke, Virginia 24011,

for disbursement.

67a

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

Any obligation to pay restitution is joint and several

with other defendants, if any, against whom an order

of restitution has been or will be

entered.

Joint and Several

F The defendant shall pay the cost of prosecution.

F The defendant shall pay the following court

cost(s):

F The defendant shall forfeit the defendant's

interest in the following property to the United

States:

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3)

restitution interest, (4) fine principal,

(5) fine interest, (6) community restitution, (7)

penalties, and (8) costs, including cost of

prosecution and court costs.

68a

FILED: October 5, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4550(L)

(3:18-cr-00025-NKM-JCH-2)

UNITED STATES OF AMERICA

Plaintiff - Appellee

MICHAEL PAUL MISELIS

Defendant - Appellant

-----------------------------THE FREE EXPRESSION FOUNDATION, INC.

Amicus Supporting Appellant

No. 19-4551

(3:18-cr-00025-NKM-JCH-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

BENJAMIN DRAKE DALEY

69a

Defendant - Appellant

-----------------------------THE FREE EXPRESSION FOUNDATION, INC.

Amicus Supporting Appellant

ORDER

The court denies the petition for rehearing and

rehearing en banc. No judge requested a poll under

Fed. R. App. P. 35 on the petition for rehearing en

banc.

Entered at the direction of the panel: Judge

King, Judge Diaz, and Judge Rushing.

For the Court

/s/ Patricia S. Connor, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.