United States v. Michael Miselis

Majority - Diaz

No, the Anti-Riot Act is not unconstitutionally vague under the Fifth Amendment, but yes, it is facially overbroad in some applications under the First Amendment's Free Speech Clause; however, the overbroad provisions are severable, leaving the remainder of the statute intact and constitutional. The court held that the Anti-Riot Act is not void for vagueness. The definition of "riot" in § 2102(a) provides sufficient clarity through its requirements of a "public disturbance" involving "acts of violence" or "threats of violence" by three or more persons, and a "clear and present danger" of damage or injury. The term "violence" has a settled meaning, and other elements narrow the scope, providing adequate notice and preventing arbitrary enforcement. Arguments regarding the vagueness of "clear and present danger" or the "immediate execution" requirement for threats were rejected as these are common and permissible legal assessments. However, the court found the Anti-Riot Act facially overbroad in part because it criminalizes a substantial amount of speech protected by the First Amendment, as defined by Brandenburg v. Ohio. Under Brandenburg, advocacy of lawlessness is only unprotected if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The terms "encourage" and "promote" in § 2101(a)(2) are overbroad because they encompass mere "abstract advocacy" which is protected speech, not direct, imminent incitement. Similarly, the term "urging" in § 2102(b) is overbroad because "earnest and persistent" encouragement does not meet the Brandenburg test. Additionally, the phrase in § 2102(b) stating the terms "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..." creates a double negative, effectively criminalizing "mere advocacy of violence," which is also protected under Brandenburg and NAACP v. Clairborne Hardware Co. In contrast, the terms "incite" in § 2101(a)(1) and "instigate" in § 2102(b) are consistent with Brandenburg. The term "organize" in § 2101(a)(2) is also constitutional as it refers to concrete aid and facilitation of a riot, not abstract advocacy, aligning with Rice v. Paladin Enters., Inc. The definition of a "riot" in § 2102(a) is not overbroad because it describes conduct (actual or threatened violence) that Congress has the right to prevent and is inherently unprotected by the First Amendment. Despite the partial overbreadth, the court found the problematic provisions severable. The specific words "encourage," "promote," and "urging," and the final phrase of § 2102(b) can be excised, leaving the remaining statute "constitutionally valid," "capable of functioning independently," and "consistent with Congress’ basic objectives." This "surgical" remedy is preferred over facial invalidation. Since the defendants' offense conduct, as stipulated in their guilty pleas, involved "commit[ting] any act of violence in furtherance of a riot," "participat[ing] in" and "carry[ing] on a riot"—all conduct-oriented purposes that remain valid and unprotected under the severed statute—their convictions stand.