United States v. Robert Paul Rundo, et al. (9th Cir. March 2021)

The Federal Docket

First Amendment/Anti-riot Act – Provisions of the Anti-Riot Act criminalizing “urging,” organizing,” “promoting,” “encouraging,” or “advocating” a riot are overbroad but severable.

Firsrt Amendment/Anti-riot Act – Provision of Anti-Riot Act prohibiting “overt act” in furtherance of an intent to incite a riot was not overbroad since it met the imminence requirement under Brandenburg.

Robert Paul Rundo, Robert Boman, Tyler Laube, and Aaron Eason were charged under the Anti-Riot Act, 18 U.S.C. 2101. Count One of their indictment charged them each with conspiring and agreeing to riot, while Count Two charged only Rundo, Boman, and Eason with aiding and abetting each other in using facilities of interstate commerce with intent to riot.

Laube pled guilty to his one charge. The other defendants moved to dismiss their indictment, claiming that the Anti-Riot Act violated the First Amendment. The district court granted their motion, and the government appealed the dismissal of the indictment. Reviewing the decision de novo, the Ninth Circuit held that certain of the provisions of the Act were overbroad as the Defendants argued, but it also found those provisions to be readily severable. As such, it reversed the dismissal and remanded for further proceedings consistent with its opinion.

On appeal, the Defendants had the burden of establishing that the Act was substantially overbroad, both textually and actually. Defendants argued this on four grounds: 1) that the Act’s criminalization of an “overt act” in furtherance of an intent to incite a riot was too far removed in time from a possible riot to satisfy the Brandenburg imminence requirement; 2) that criminalizing speech that “urges,” “instigates,” “organizes,” “promotes,” or “encourages” a riot as well as “advocacy” of violent acts was facially overbroad; 3) that the definition of “riot” within the Act was unconstitutional; and 4) that the Act violated the “heckler’s veto” doctrine.

The Court rejected the Defendant’s first, third, and fourth arguments entirely. Adopting the same approach that the Seventh Circuit took in United States v. Dellinger, the Ninth Circuit first found that the “overt act” provision of the Act could be read to meet the Brandenburg imminence requirement by requiring acts that themselves fulfill the elements of the criminal conduct rather than acts that were just steps toward such elements. For the third argument, the Court found that the definition of “riot” in the Act required proof of subjective intent to threaten harm and thus did not include speech protected by the First Amendment. Finally, the Court found that the “heckler’s veto” rule was not implicated because an inciting charge under the Act requires actual intent to move others to violence, not mere knowledge that they might do so.

The Defendant’s second argument was found to be partially meritorious. The Court adopted the Fourth Circuit’s holding in United States v. Miselis here, finding that the Act’s criminalization of “urging,” “organizing,” “encouraging,” “promoting” and “advoca[ting]” riots was overbroad and failed the Brandenburg test, but that “instigating” a riot covered only unprotected conduct. The Court also found the overbroad provisions to be fully severable from the Act, and so held it is not unconstitutional on its face.

Judge Fernandez concurred in the judgment and in most of the reasoning but dissented to the finding that “organizing” and “urging” were overbroad and must be severed from the Act.

Appeal from the Central District of California
Per Curiam Opinion by Fernandez, Paez, and Tigar (by designation from N.D. Cal.)
Partial Concurrence and Partial Dissent by Fernandez

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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