Tuesday, September 01, 2020

Parts of Anti-Riot Act Unconstitutional, but Severable; Convictions Affirmed

US v. Miselis: Miselis and his codefendant were part of a “local white supremacist group” in California dedicated to going to political rallies “at which its members engaged in violate attacks on counter-protestors.” As particularly relevant to this case. The defendants took part in a pair of violent confrontations in California before travelling to Charlottesville, VA for the “notorious ‘United the Right’ rally” in 2017, where the also engaged in violence. As a result, they were charged with conspiring to violate the Anti-Riot Act as well as travelling in interstate commerce to violate the Anti-Riot Act. After a motion to dismiss the indictment was denied, the defendants entered conditional guilty pleas to the conspiracy count and were sentenced to 27 and 37 months in prison.

The Fourth Circuit affirmed their convictions on appeal, but in doing do struck down large parts of the Anti-Riot Act as unconstitutional under the First Amendment. The problem, as the court noted late in its opinion, is the problematic parts of the Act – those addressing promoting or encouraging violent acts or similar advocacy – may have passed constitutional muster when the Act was enacted in 1968, but in the wake of the Supreme Court’s decision in Brandenburg (1969) and the refinement of First Amendment law, those portions no longer survived. However, the court concluded that the Act was severable and the problematic portions could be struck, leaving the Act focused only on actual acts and advocacy that fell within the bounds of Brandenburg. As a result, the defendants convictions were affirmed because the conduct to which they admitted in their guilty pleas fell clearly within the bounds of the parts of the Act that survived.

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