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Judges take divergent views on federal Riot Act

Taking an opposing view from that of a Virginia federal judge, a judge in California has dismissed charges of inciting violence against three alleged members of a white supremacist group.

The judge found the defendants’ actions amounted to constitutionally protected free speech.

In both the Virginia and California cases, prosecutors said members of the Rise Above Movement conspired to riot by using the internet to coordinate hand-to-hand combat training, traveling to protests and attacking demonstrators. In Virginia, the charges were focused on communications leading up to the rallies in Charlottesville in August 2017.

Despite the group’s “hateful and toxic ideology,” a rarely used criminal statute passed in 1968 went too far in regulating free speech, Judge Cormac J. Carney ruled June 3 in U.S. District Court in Los Angeles.

Carney’s decision is in conflict with the April 26 ruling of U.S. District Judge Norman K. Moon, who rejected arguments that the Anti-Riot Act is so broad that it violates First Amendment protections for speech and lawful assembly.

An appeal of Moon’s ruling is planned, according to Lisa Lorish, assistant federal public defender in Charlottesville.

There are plausible arguments in support of both decisions, with Carney taking a broad interpretation of the law and Moon taking a narrow one, said Eugene Volokh, a law professor at the University of California, Los Angeles, who spoke to the Associated Press.

The conflict between the rulings on opposite coasts could rise to the Supreme Court if both rulings are appealed and circuit courts reach different conclusions, Volokh said. But that’s far from certain.

In the California case, Carney said the Anti-Riot Act – most famously used to prosecute the “Chicago Eight,” including Abbie Hoffman, Bobby Seale and Tom Hayden for conspiring to incite a riot at the ‘68 Democratic National Convention – was unconstitutional in part because it criminalized advocating violence when no riot or crime was imminent. He said prosecutors cited social media posts the men made months before and months after the rallies.

“Some posts express repugnant, hateful ideas,” Carney wrote. “Other posts advocate the use of violence. Most, if not all, are protected speech.”

Additional reporting by Virginia Lawyers Weekly.


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