972 F.3d 518
4th Cir.2020Background
- Miselis and Daley were members of the white supremacist "Rise Above Movement" (RAM) and engaged in violent assaults at three 2017 rallies (Huntington Beach, Berkeley, and Charlottesville).
- Indicted on two counts: (1) conspiracy under 18 U.S.C. § 371 (with the Anti‑Riot Act as the substantive offense) and (2) travel in interstate commerce with intent to riot under 18 U.S.C. §§ 2101–02. District court denied motion to dismiss; defendants entered conditional guilty pleas to the conspiracy count preserving constitutional challenges.
- Appellants challenged the Anti‑Riot Act as facially overbroad under the First Amendment and void for vagueness under the Fifth Amendment.
- Fourth Circuit reviewed de novo, found parts of the statute overbroad under Brandenburg v. Ohio but not unconstitutionally vague, and severed the overbroad language instead of striking the entire statute.
- The court affirmed the convictions because the defendants’ stipulated violent, non‑speech conduct fits within the Anti‑Riot Act’s valid, surviving provisions (e.g., committing acts of violence in furtherance of a riot).
Issues
| Issue | Miselis/Daley (Appellants) | Gov't | Held |
|---|---|---|---|
| Facial overbreadth under First Amendment | Statute criminalizes protected advocacy (e.g., "encourage," "promote," "urge," and mere advocacy of violence) beyond Brandenburg | Statute targets unprotected incitement/organizing; can be construed to avoid overbreadth | Partial win for appellants: words "encourage," "promote," "urging," and the double‑negative clause in §2102(b) are overbroad and severed; remainder valid |
| Vagueness under Due Process | §2102(a) ("riot" definition) and other terms are too indeterminate for ordinary people and invite arbitrary enforcement | Definition and elements (act/threat of violence, 3+ persons, harm or clear‑and‑present‑danger) provide adequate guidance | Rejected: statute not unconstitutionally vague; elements give sufficient notice and limiting context |
| Standing to challenge Anti‑Riot Act as object of conspiracy | A conspiracy conviction cannot stand if object statute is unconstitutional; thus they can challenge | Gov't concedes standing implicit because §371 requires lawful object | Held: appellants have standing to bring facial constitutional challenges to the Anti‑Riot Act |
| Severability and effect on convictions | Overbreadth requires dismissal of convictions because indictment alleged alternatives and did not specify which means | Gov't: only the overbroad language should be severed; convictions stand if record proves a valid statutory theory | Held: overbroad language severable; record (plea statements) shows defendants’ violent conduct falls under surviving, conduct‑based provisions, so convictions affirmed |
Key Cases Cited
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (establishes test protecting advocacy unless directed to and likely to produce imminent lawless action)
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth must be substantial relative to statute’s legitimate sweep; limits rewriting statutes)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (void‑for‑vagueness doctrine where criminal prohibitions must give fair notice and avoid arbitrary enforcement)
- Kolender v. Lawson, 461 U.S. 352 (1983) (vagueness doctrine and arbitrary enforcement concerns, especially near First Amendment activity)
- New York v. Ferber, 458 U.S. 747 (1982) (construe statutes to avoid constitutional problems; ban on certain child pornographic materials upheld)
- Rice v. Paladin Enters., Inc., 128 F.3d 233 (4th Cir. 1997) (speech that materially facilitates crimes is not protected abstract advocacy)
- United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) (early Anti‑Riot Act decision; discussed statutory construction and incitement)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (true threats and limits on regulation of certain categories of speech)
- Virginia v. Black, 538 U.S. 343 (2003) (true threats doctrine and when speech loses First Amendment protection)
- United States v. Hedgepeth, 418 F.3d 411 (4th Cir. 2005) (conspiracy requires agreement to commit a crime; standing implications when object statute may be unconstitutional)
- United States v. Booker, 543 U.S. 220 (2005) (severability principles; retain constitutional portions of statutes when possible)
- Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) (presumption of severability and preference for partial invalidation when feasible)