Florida anti-riot law struck down as unconstitutional to protesters

(CN) — A federal judge in Florida has barred the state from enforcing a law purporting to criminalize rioting that he wrote instead “could effectively criminalize the protected speech of hundreds, if not thousands of law-abiding Floridians."

U.S. District Judge Mark Walker, an Obama nominee serving the Northern District of Florida, penned a historically minded ruling.

His opinion opened with a retelling of the 1956 Tallahassee Bus Boycott, when two Black women’s decision not to move from the bus’s whites-only section resulted in their arrest for “inciting a riot.”

Walker’s implication: Florida’s anti-riot laws have a long history of providing cover for discrimination and other unconstitutional overreaches of governmental authority.

“Now this court is faced with a new definition of ‘riot’ — one that the Florida legislature created following a summer of nationwide protests for racial justice,” Walker continued, “and in support of the powerful statement that Black lives matter.”

Walker found that the state’s latest attempt to curb civil disorder was unconstitutionally overbroad.

According to HB1, titled the “Combating Public Disorder” law, one has rioted if one “willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct,” if “injury to another person … damage to property … or imminent danger of injury to another person or damage to property” results from the gathering.

The problem, according to the political organizing groups that sued Florida and its Republican Governor Ron DeSantis over the statute, is that participants in large demonstrations could be held criminally liable for the activity of others who commit violence or property damage, even if those participants did not and did not intend to cause others harm.

“Dream Defenders fears police will be emboldened to provoke demonstrators or to respond with extreme force or mass arrests to anyone allegedly inciting a riot, even if they are not associated with the demonstration,” said the prison abolitionist group’s co-director, Rachel Gilmer, in a declaration filed with the court this June. Dream Defenders is the lead plaintiff to the suit.

Because the group feared reprisal under HB1, it declined to schedule a demonstration or other event on May 25, 2021, the day marking one year since George Floyd’s death under the knee of Minneapolis police officer Derek Chauvin, nor any protests since the law was enacted.

Walker found that this confers not only standing to Dream Defenders but demonstrates, “beyond mere conclusions, that their members have engaged in self-censoring for fear of the challenged statute’s enforcement against them.”

The state law says a rioter is one who “willfully participates in a violent public disturbance” — but, Walker noted, the statute does not make clear what counts as willful participation. The judge offered a laundry list of edge cases that could deter would-be demonstrators from exercising their free speech rights.

“Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? Whatif you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?”

Additionally, Walker questioned whether peaceful protests that later become violent count as “violent public disturbances,” and whether violent actions caused by a minority of protesters would implicate other attendees.

“Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition?” Walker asked before writing that the state “offers no answers to these questions.”

Governor DeSantis signed HB1 into law on April 19, 2021.

The ACLU of Florida called Walker’s injunction “a major victory for civil rights and racial justice advocates” in a statement jointly authored with the plaintiff political groups Thursday.

“HB1 effectively criminalizes our constitutional right to peacefully protest and puts anyone — particularly Black people demonstrating against police violence — at risk of unlawful arrest, injury, and even death. This targeting of protesters is shameful and directly contradicts our Constitution,” the groups wrote. “We are glad the court has agreed to suspend enforcement of this key provision while we continue to advocate to ensure that protesters in Florida can safely exercise their right to speak out against injustice. ”

Last August, the Fourth Circuit struck portions of a Virginia anti-riot law for unconstitutionally regulating expressive activity.

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