Anti-Riot Statute is Constitutional

JOOTB_FinalShamar Betts recently failed to overturn a federal anti-riot statute on First Amendment grounds.  The United States Court of Appeals ruled that the statute survived a constitutional challenge.  In retrospect, Betts may not have been the ideal challenger.

On May 30, 2020, Mr. Betts posted a flyer on Facebook that read: "RIOT @ MarketPlace Mall Time: 3 … Bring friends& [sic] family, posters, bricks, bookbags etc.  After the mall we hitting the whole PROSPECT & NEIL."  Mr. Betts posted the flyer during a weekend of George Floyd protests, and it included an image of a burning car flanked by people.  Along with the flyer, Mr. Betts wrote:  "I'm just the messenger.  We're literally sitting on our ass watching the whole country and even others fight for our black rights … We gotta put Champaign/Urbana on the map mfs gone hear and fear us too."

The next day, Mr. Betts and a group of 50 to 75 people gathered at Market Place Mall. At approximately 3:12 p.m., they began damaging property and looting stores.  Mr. Betts captured the riot on Facebook Live telling his viewers "[l]ook what a n**** just started … look what a n**** just started. We out here …."  In another video, Mr. Betts is seen looting two stores: Macy’s and Old Navy.  The riot moved to other businesses on Prospect Avenue and Neil Street.  Mr. Betts participated in the riot for an hour or so, but rioting apparently lasted until the early morning hours.  By the next day, several businesses were damaged and lost merchandise.  As revealed in text messages to friends and family, Mr. Betts proudly took credit for starting the riot.

Betts was later arrested and indicted for inciting a riot, in violation of the federal Anti-Riot Act. He filed a motion to dismiss the indictment arguing, in part, that the Anti-Riot Act was unconstitutionally overbroad in contravention of the First Amendment.  Based on Seventh Circuit precedent, the trial court denied the motion to dismiss.  Mr. Betts ultimately pled guilty but appealed the dismissal to the Seventh Circuit.

On appeal, the Seventh Circuit considered the Anti-Riot Act in light of United States Supreme Court precedent that has established the requirements for punishing speech that incites violence.  Under that precedent, the government must establish that the speech is directed at inciting or producing imminent lawless action; and likely to incite or produce such action.  The Anti-Riot Act applies to anyone who transmits a communication (1) to incite a riot; or (2) to organize, promote, encourage, participate in, or carry on a riot; or (3) to commit any act of violence in furtherance of a riot; or (4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot.

Mr. Betts argued that the Anti-Riot Act violated the Constitution because it criminalizes acts taken long before a crowd gathers.  In other words, in Mr. Betts' view, the Act ignored the imminence required by the Supreme Court precedent.  But the Seventh Circuit disagreed. It concluded that the verbs “organize, promote, encourage” and "urging" required a close relationship to imminent action.  In the Seventh Circuit’s view, courts can discern when "urging" is imminent and when it’s not. 

The harm occasioned by an overly broad statute is that it potentially sweeps protected speech in with unprotected speech.  Cases presenting "close calls" might be decided in a way that criminalizes legal conduct.  But Mr. Betts’ case didn’t seem particularly close, given his promotion of the riot, his participation in it and his bragging afterwards.  The issues he raised are serious, but there is likely a better plaintiff next time.

About The Author

Jack Greiner | Faruki Partner