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High Court Won’t Hear Appeal of White Nationalist Rioters

The justices declined to take up the case of two members of a white nationalist group challenging the constitutionality of an anti-riot law they admitted to violating.

WASHINGTON (CN) — Two men convicted under a controversial federal anti-riot law for their participation in the 2017 Unite the Right rally in Charlottesville, Virginia, were turned away by the U.S. Supreme Court on Monday morning. 

Michael Paul Miselis and Benjamin Drake Daley, both members of the now-defunct, California-based white nationalist group the Rise Above Movement, pleaded guilty in May 2019 to violating the Anti-Riot Act for their involvement in the rally, which rocked the quiet central Virginia city and left one counter-protester, Heather Heyer, dead. 

According to the Department of Justice, the two men’s crimes started long before the Charlottesville rally. They first helped organize events in California which lead to violence in the streets. In August 2017, they attended a march the night before the Unite the Right rally and led chants like “blood and soil” and “Jews will not replace us.”

On the day of rally, the two “collectively pushed, punched, kicked, chocked, head-butted, and otherwise assaulted several individuals, resulting in a riot” and admitted these actions were not in self-defense, according to federal prosecutors.

Both men appealed their charges despite pleading guilty, claiming the Anti-Riot Act, part of the Civil Rights Act of 1968, is an unconstitutional violation of their First Amendment rights. If the law was struck down, their pleas would be void.

In a 2020 opinion upholding the men's convictions, U.S. Circuit Judge Albert Diaz of the Richmond, Virginia-based Fourth Circuit noted the Anti-Riot Act has long been a controversial edict that walked a narrow line between protected speech and a ban on incitement.

“Congress passed the Anti-Riot Act as a rider to the Civil Rights Act of 1968, amidst an era, not unlike our own, marked by a palpable degree of social unrest,” the Barack Obama appointee wrote last summer after months of protests fueled by the death of George Floyd in police custody swept across the nation.

The three-judge panel ultimately found evidence supports the convictions on Daley and Miselis.

"“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,'" Diaz wrote. (Parentheses in original.)

On appeal to the Supreme Court, Daley’s public defender Juval O. Scott noted in a petition that prosecutions under the Anti-Riot Act went out of favor after the 1960s and 70s.

“In response to recent civil unrest around the country, prosecutions under the act have resumed, and the lower courts are divided on the constitutionality of the law,” Scott wrote. “At this time in our nation’s history, this court should resolve the important questions of the dividing line between protest and riot, and the constitutional limit of the federal government’s power to prosecute individuals in the aftermath of local social unrest.”

In an amicus brief, the California-based Free Expression Foundation similarly urged the nation’s highest court to take up the appeal considering the complex First Amendment questions the law raises. 

FEF attorney Andrew Allen said in an interview there are laws and precedent that can be used to fairly prosecute defendants when protests turn to riots, but he thinks the Anti-Riot Act is flawed. 

“You don’t need the Anti-Riot Act. It is an extreme law that’s already had half of its clauses cut out,” he said, pointing to years of court opinions which have whittled away at its language. 

But Diaz noted in the Fourth Circuit opinion that the set of facts that lead to the defendants’ guilty pleas made the otherwise “overbroad and, thus, invalid” law hard to overturn in their cases. 

“Because the record… establishes conclusively that the defendants’ substantive offense conduct falls under the statute’s surviving purposes, their convictions must stand,” the judge wrote.

Still, Allen would have liked to see the high court intervene. 

“It’s too bad,” the attorney said. “The case raised important questions of law that hadn’t been looked at by the Supreme Court.”

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