United States v. Robert Rundo, 990 F.3d 709

Background:

Four defendants (members/leaders of the "Rise Above Movement" or RAM) were indicted under the Federal Anti‑Riot Act for conspiracy to riot and substantive violations based on interstate travel, use of facilities, combat training, social‑media recruitment, and participation in violent attacks at political rallies.
Count One charged conspiracy to riot; Count Two charged use of interstate facilities (internet, phone, credit card) with intent to riot and related overt acts; one defendant initially pled guilty but later moved to withdraw his plea after the indictment was dismissed.
The district court dismissed the indictment on the ground that the Anti‑Riot Act is facially overbroad under the First Amendment (Brandenburg v. Ohio test), and the government appealed.
The Ninth Circuit reviewed de novo, construed the statute where possible to avoid constitutional problems, and identified certain statutory language that criminalized protected speech.
The panel held parts of the statute unconstitutional (terms like "organize," "promote," "encourage," and the expansion to "urging" and some formulations of "advocacy"), found those portions severable, and reversed the dismissal as to the remainder of the Act, remanding for further proceedings.

Issues:

Issue	Plaintiff's Argument (U.S.)	Defendant's Argument (Defendants)	Held
Whether the Anti‑Riot Act is facially overbroad under the First Amendment	Statute punishes unprotected incitement and conduct; can be reasonably construed to satisfy Brandenburg imminence requirement	Statute criminalizes advocacy that does not incite imminent lawless action and thus is substantially overbroad	Partially rejected: statute is not facially overbroad after severing specific language that criminalizes protected advocacy
Scope of the "overt act" requirement (timing/proximity to riot)	Overt‑act language should be read to require conduct closely tied to the proscribed ends (not mere preparatory steps)	Overt‑act language is too remote in time and could criminalize protected speech disconnected from imminent action	Held for U.S.: overt act construed to refer to acts that fulfill the statute’s substantive elements, preserving Brandenburg imminence
Whether terms "incite/instigate/aid or abet" are constitutional	These terms describe classic unprotected incitement and can be limited by statutory definitions to require imminence/intent	Defendants argued broad wording could criminalize protected advocacy	Held: "incite/instigate" and aiding/abetting can be read to meet Brandenburg and are constitutional
Whether terms "organize/promote/encourage/urge" are overbroad	Government argued statute can be read to focus on imminent, action‑propelling speech	Defendants argued those verbs encompass protected advocacy and lack imminence requirement	Held: "organize/promote/encourage" and statutory expansion to "urging"/certain formulations of "advocacy" criminalize substantial protected speech and are invalid
Constitutionality of the statutory definition of "riot" (acts/threats)	Definition includes acts or threats that create a clear and present danger; intent requirement limits threats to "true threats"	Defendants argued definition could sweep protected speech	Held: Definition is constitutional because it targets violent acts and true threats and requires subjective intent/purpose for a riot
Whether the statute permits a heckler's‑veto (silencing because of anticipated audience reaction)	Government: mens rea and overt‑act requirements prevent punishing mere provocative speech; intent to cause riot is required	Defendants argued statute could be used to silence speech due to anticipated violence by others	Held for U.S.: statute does not effectuate a heckler's veto because punishment requires the speaker’s intent to engage in proscribed conduct

Key Cases Cited

Brandenburg v. Ohio, 395 U.S. 444 (per curiam) (incitement standard: speech is unprotected only if directed to inciting imminent lawless action and likely to produce it)
United States v. Williams, 553 U.S. 285 (2008) (statutory construction principle: courts should adopt reasonable constructions to avoid constitutional invalidation)
Dellinger, United States v., 472 F.2d 340 (7th Cir. 1972) (construction of Anti‑Riot Act’s overt‑act language limiting scope to acts fulfilling substantive elements)
Miselis v. United States, 972 F.3d 518 (4th Cir. 2020) (held certain Anti‑Riot Act language overbroad; discussed "urge/organize" issues)
New York v. Ferber, 458 U.S. 747 (1982) (severability and limiting invalid provisions)
Cassel v. United States, 408 F.3d 622 (9th Cir. 2005) (true threats and intent requirement interpretation)
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (distinction that violent conduct is not protected speech)
Brandenburg‑era limitation cases including Virginia v. Hicks, 539 U.S. 113 (2003) (overbreadth burden and analysis)
Barr v. American Association of Political Consultants, Inc., 140 S. Ct. 2335 (2020) (severability principles)