The appellate court’s ruling comes a year after a federal judge in a separate case held that the entire Anti-Riot Act is unconstitutional.
RICHMOND, Va. (CN) — The Fourth Circuit on Monday upheld the convictions of two members of a white supremacist group involved in the 2017 Unite the Right rally in Charlottesville, but the Virginia-based appeals court also invalidated sections of a 52-year-old anti-riot law for infringing on free speech.
Michael Paul Miselis and Benjamin Drake Daley both traveled from California to attend the event held just over three years ago this month. While the rally was marred by street fights, the death of counter protester Heather Heyer, and President Donald Trump praising “very fine people on both sides,” it also led to criminal prosecutions for Daley and Miselis after they admitted to being involved in the street fights.
Court documents show the two Southern California natives, who were linked to the white supremacist group Rise Above Movement, traveled to Charlottesville and were involved in two events over the course of about 24 hours – a late night tiki torch march that ended in fights with counter protesters, and the following day’s rally that also ended in violence between the two sides.
A federal investigation led to charges against Daley and Miselis for conspiracy to commit an offense against the United States, as well as traveling in interstate commerce with intent to riot in violation of the federal Anti-Riot Act. While they both pleaded conditionally guilty to the former charge, they appealed the constitutionality of the latter.
The Anti-Riot Act is nestled inside the Civil Rights Act of 1968, and while it was intended to address interstate efforts by racist groups like the Klu Klux Klan, it has been used against civil rights advocates as well.
On Monday, a three-judge panel of the Richmond-based Fourth Circuit agreed that are constitutional flaws in the federal anti-riot law.
“In our view, the Anti-Riot Act sweeps up a substantial amount of speech that retains the status of protected advocacy… insofar as it encompasses speech tending to ‘encourage’ or ‘promote’ a riot… as well as speech ‘urging’ others to riot or ‘involving’ mere advocacy of violence,” wrote U.S. Circuit Judge Albert Diaz, a Barack Obama appointee, in a unanimous 46-page opinion. “In all other aspects, however, we find the statute consistent with the First Amendment.”
To that end, the panel struck several specific words from the law, including the aforementioned “encourage,” “promote,” and “urging.”
“Such minimal severance is consistent with Congress’s basic objective in enacting the Anti-Riot Act,” Diaz added. “We think that objective is to proscribe, to the maximum permissible extent, unprotected speech and conduct that both relates to a riot and involves the use of interstate commerce.”
But the ruling wasn’t a win for Daley and Miselis, as the panel found evidence of their offenses supports their convictions.
“Because the record… establishes conclusively that the defendants’ substantive offense conduct falls under the statute’s surviving purposes, their convictions must stand,” Diaz wrote. “The defendants admitted to having each (as part of an assemblage of three or more) ‘personally committed multiple violent acts’—including but not limited to pushing, punching, kicking, choking, head-butting, and otherwise assaulting numerous individuals, and none of which ‘were in self-defense.’” (Parentheses in original.)
In an emailed statement, Lisa Lorish and Raymond Tarlton, the two lawyers who argued on behalf of Daley and Miselis, praised the Fourth Circuit as the first federal appellate court to find the Anti-Riot Act overly broad.
“This ruling has particular significance as the Department of Justice is actively using this law to prosecute individuals in the aftermath of the protests following the murder of George Floyd after decades of little to no use of the law,” they wrote, pointing to criminal charges supported by Attorney General William Barr in the wake of nationwide unrest.
Last year, a federal judge in California held that the entire Anti-Riot Act is unconstitutional, finding it “regulates a substantial amount of protected speech and assembly,” and dropped criminal charges against several other Rise Above Movement members.
Miselis and Daley’s lawyers were disappointed in their clients not getting the same break at the Fourth Circuit.
“We will be evaluating potential next steps with our clients,” they said.
Requests for comment from the U.S. Attorney’s Office in Roanoke were not returned by press time.