Anti-Riot Act Prosecution Over August 2020 Looting Messages Can Go Forward

Starting at U.S. v. MasseyFriday was the decisive day

The following allegations were made by a grand jury in November 2020. Massey had a Facebook page under “Steve Nash” and posted messages and videos on Facebook between August 9-10, 2020. Here are some of the messages:

  • “Bro im hitting phone store.”
  • Let’s steal some bitch!
  • “I finna link up with everybody …. Y’all ready? I provided the link to everyone. I’m trying to find something. “I need to go to a few stores.”

Massey, along with three others, broke into four stores on the Loop’s north side and stole the merchandise.

Massey is charged with using the internet and a telephone to set off a riot and to carry it out. [the federal Anti-Riot Act] ….

In its relevant parts, the Anti-Riot Act makes it a Federal Felony.

Transport[]Interstate and foreign commerce; or any facility for interstate commerce. [communications systems]Intent

(1) to incite a riot; or

(2) to promote, organize, encourage, take part in or conduct a riot.

(3) Any act of violence that is in support of a rebellion;

(3) To assist or aid any person in inciting, participating or carrying out a rebellion or in any act of violence further to a revolution

and … during the course of any such travel or use or thereafter perform[]Or, you could try[]Any other acts of overtness for any reason specified [above] …

This Act describes riot as “public disturbance involving”

(1) An act of violence committed by one or more people as part of an assemblage consisting of 3 or more individuals. This act/acts shall be a clear danger to, or result in damage to, the property or person of another person.

(2) any threat or threats to commit an act of violence, by one or more individuals who, collectively or individually, have the ability to execute such threat/threats immediately.

This definition includes “to incite, promote or encourage a rebellion” and “to plan, organize, foster, encourage, take part in, or continue a revolution”.

Instigating or urging others to riot. However, it is not defined as (1) advocating ideas or (2) expressing belief. This does not mean that any violence should be advocated or claimed to be rightful.

Massey’s face challenge was rejected by the court citing Seventh Circuit precedent. U.S. v. Dellinger (7th Cir. 1972):

DellingerAccording to the Seventh Circuit, Anti-Riot Act was narrowly read by the court so it could be criminalized for inciting imminent lawlessness. Each of the sections in section 21101(a), was reviewed by the Seventh Circuit and deemed each “sufficiently related to constitute a propelling reason for a riot”. Also, the court considered section 2102 (b)’s “urge” and determined that it was constitutional.[ied]A relation to an action”, consistent with constitutional requirements. The court then interpreted the double negative phrase at the end of section 2102(b): a violation “shall not be deemed to mean … ideas or [] expression … not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” Over a dissent, the majority theorized that the statute’s drafters included this “unnecessary” and “awkward phraseology” based on the assumption that proscribable inciting speech would necessarily include advocacy of violent acts as well….

Massey … asserts that the Seventh Circuit would overrule Dellinger today if given the chance…. [S]The Supreme Court’s subsequent precedents have provided further detail about the Constitutional limits regarding incitement. See, e.g., Ashcroft v. Free Speech Coal (2002) (“[T]It is enough to have a tendency for speech or conduct that encourages illegal acts.”); Hess v. Indiana(1973), explaining that advocacy of illegal actions at an indefinite future point cannot be penalized. Two other circuits, however, have rejected parts of Seventh Circuit’s Anti-Riot Act reading and have ruled that some provisions run contrary to the First Amendment. Look! United States v. Rundo (9th Cir. 2021) (holding prohibitions of encouraging, procrastinating, and urging are too broad but finding these provisions separable from the remainder of the statute); United States v. Miselis (4th Cir. 2020) (same).

Court cannot be persuaded to disregard the appropriate consequences Dellinger.A lower court must follow precedents from higher courts unless the law says otherwise. There have been arguably legitimate points made by the other circuits who have looked at the Anti-Riot Act. Massey, however, has not established the level of certainty necessary for the Seventh Circuit to today repudiate any or all of it. Dellinger.

Additionally, Massey was indicted for participating and initiating riots. Notable is the fact that Massey was indicted for inciting, participating in, and carrying out a riot. The courts dismissed this charge. RundoAnd Miselisdeemed constitutionally incompatible. Massey’s summary does not address the specific statute terms that are underpinning the indictment. If he is successful in challenging section 2102(b), Massey’s challenge would leave the definition of “urging” intact. …

As a word of caution, … [g]Given that both the section 2102(b), and the subsection’s double-negative clause are in violation of the First Amendment, two appeals courts have held recently that “urging” is a term that should be avoided once the case goes to trial.

A court also found that, should the allegations be proven true, the conduct was within the Anti-Riot Act.

[1.]Massey is accused of sending messages to specific Facebook users in addition to using Facebook Live to broadcast. Indictment further alleges Massey sent messages that contained time and location (12:01 AM), “north”, “phone store” and “the place to link up”. These facts are true. [Massey’s]Conduct” is considered to be likely to lead imminent lawlessness

[2.]Massey claims that there is no “organizational relationship” between Massey and the people listening to his testimony. But he does not cite any authority indicating that such a relationship is required, nor has the Court found any….

[3.]Massey claims that the Anti-Riot Act doesn’t contemplate property damage at a store, because section 2102 (a) states “damage to property of another person”. The Dictionary Act, however, clarifies that every federal statute’s use of the term “person” includes “corporations, companies, associations, forms, partnerships, societies, and joint stock companies, as well as individuals” unless the context of the statute indicates otherwise….

[4.]Massey believes that Massey’s speech rather than the circumstances around Latrell Allen’s shooting by police caused the property damage in the indictment. It is not grounds for dismissal. However, it does amount to an evidence issue that must be resolved at trial.