Two separate federal cases against the white supremacist group Rise Above Movement showcase the complicated ways the First Amendment can be interpreted by the legal system.
In October 2018, four California men were indicted on federal riot charges for conspiring across state lines to commit acts of violence at the Unite the Right rally in August 2017.
According to the government, the four men — Benjamin Drake Daley, Thomas Walter Gillen, Michael Paul Miselis and Cole Evan White — had attended the rally in Charlottesville with the explicit intent to harm Jewish people and people of color, whom they viewed as enemies.
The next month, four separate RAM members were indicted on the same charges for actions the government said they took prior to rallies in San Bernardino and Berkeley, both in California.
In both states, the defendants argued separately that due in part to its overly broad nature, the Anti-Riot Act was unconstitutional and infringed on their First Amendment rights to political speech. This argument failed to sway a U.S. district judge in Virginia but found traction in California.
In June, U.S. District Judge Cormac J. Carney ruled in Los Angeles that the act went too far in regulating free speech.
The Anti-Riot Act, which was most famously used to prosecute the “Chicago Eight” for conspiring to start a riot at the 1968 Democratic National Convention, was unconstitutional, he said, because it criminalized advocating violence when no riot was imminent.
“Some posts express repugnant, hateful ideas,” Carney wrote. “Other posts advocate the use of violence. Most, if not all, are protected speech.”
Just a couple months prior in Virginia, U.S. District Judge Norman K. Moon had reached a different conclusion. In a 31-page memorandum opinion, Moon unpacked the defendants’ various arguments, ultimately upholding their charges.
Frederick Lawrence, a civil rights expert and the secretary and CEO of the Phi Beta Kappa Society honor society, said the cases provide an insight into how an act or law can be unconstitutional as applied or on its face.
In the California RAM case, the judge reached the decision that the Anti-Riot Act was unconstitutional on its face, Lawrence said, a decision with which he does not agree.
“There’s a difference between talking about committing violence in a conversation and, to use the legal term, conspiring to commit violence at a particular time or place,” he said. “The former is protected speech.”
Though it is not used all that often, Lawrence said he was not surprised to see the Anti-Riot Act employed in the two cases.
“People sometimes forget that most crimes are state crimes and that the federal government has less at its disposal to charge people with,” he said. “The Anti-Riot Act is designed to give the federal government the ability to charge people who conspire to commit violence across state lines, so its usage makes sense.”
Though Lawrence said he understands why the government decided to go after the RAM defendants in the way they did, he said he believes seeking charges based on civil rights violations may have been more appropriate.
Late last month in U.S. District Court, Daley, Miselis and White received multi-year sentences for their actions leading up to and during the UTR rally. Soon after being sentenced, Daley filed a notice of appeal with the U.S. Court of Appeals. No hearing dates have been scheduled.
White, the fourth Virginia RAM defendant, accepted a plea agreement in November. He is currently out on bond and is expected to be sentenced this fall.