The right to protest is one of the oldest and most respected rights in the American democratic system. The right of citizens to peacefully protest is protected by the First Amendment of the U.S. Constitution. But there are limits to even the most important rights.
Protests that turn violent are called "riots." First Amendment rights aside, there are laws against rioting and inciting others to riot. The following article looks at federal and state prohibitions against rioting and inciting to riot.
Rioting, Inciting to Riot, and Related Offenses
Most states have their own laws defining what constitutes a riot and incitement to riot. After the 2021 insurrection at the U.S. Capitol, hundreds of people faced charges under federal laws, including offenses based on their role in the riot that day.
Federal law defines a riot as a public disturbance involving three or more persons engaging in acts of violence with a clear and present danger of damage to property or injury to people. The law includes threats of violence if those involved could immediately act on the threat.
Under federal law, inciting a riot (18 U.S. Code Section 2101) includes acts of "organizing, promoting, encouraging, participating in a riot" and urging or instigating others to riot.
The criminal code clarifies that incitement is not the same as simply advocating ideas or expressing beliefs in speech or writing. In order to qualify as incitement, the speech must advocate violence, the rightness of violence, or the right to commit violent acts.
Upon conviction, federal riot crimes provide for up to five years in prison.
Protected Speech Versus Incitement
Citizens have a right to free speech pursuant to the First Amendment of the U.S. Constitution. The extent of that right has been continually tested and strongly protected at all levels of government. But that right is not unlimited.
The Supreme Court found, in the case of Brandenburg v. Ohio (1969), that speech is not constitutionally protected if it is intended to produce imminent violent conduct and is likely to do so. However, the limits of free speech are still being defined in the courts. A recent Ninth Circuit decision found that statutory language in the federal riot statute that criminalizes "promoting" or "encouraging" a riot was overly broad.
The right to freedom of assembly found in the First Amendment of the Constitution is also not unlimited. First, the right pertains to the right to "peaceably assemble." Thus, there is no right to assemble for the purpose of engaging in violent acts.
Cities can also regulate the right of peaceable assembly by requiring permits or limiting demonstrations to a designated area. Cities may have practical concerns regarding crowd size and protestor safety. Cities also must safely maintain or divert road traffic. During a demonstration, law enforcement must watch for groups that may engage in vandalism or other crimes. If a group of people gathers with the intent to disturb the public peace, they could be charged with unlawful assembly or a similar offense.
State and Federal Jurisdiction
State laws apply to anyone present in the state for the commission of the criminal act. So, when would a person be charged under federal law?
- If rioting occurs on federal lands, federal government buildings, VA hospitals, military bases, etc.
- If the person traveled between states or countries to participate in a riot (though the law specifically states it is not intended to prevent travel for legitimate purposes)
- If the person used interstate or foreign commerce (internet, mail, telephone, radio, television, or social media) to communicate intent to:
- Organize, promote, encourage, participate in, or carry on a riot
- Commit any act of violence in furtherance of a riot
- Aid or abet any person in inciting, participating in, or carrying on a riot or committing any act of violence in furtherance of a riot.
Federal law enforcement uses its discretion. They may not involve themselves in protests or demonstrations that do not occur on federal property. In most circumstances, state and local police will take action to suppress a riot. Thus, most riot charges will occur under state laws.
Prosecutions in Both State and Federal Courts
In most cases, a person can be prosecuted for committing the same criminal acts in both state and federal court. The U.S. Supreme Court affirmed this view in its ruling in Gamble v. United States (2019), upholding the dual sovereignty doctrine. That doctrine states there is no violation of double jeopardy because the state and the federal government are separate sovereigns.
In the case of rioting, however, the federal statute specifically states that a judgment, or conviction, or acquittal under state law "shall be a bar to any prosecution . . . for the same act or acts" under federal law. This statute creates protection from federal prosecution that would not typically exist.
Rioting and Inciting to Riot: California State Law
California witnessed riots in 1992 after news spread about the not guilty verdicts in the criminal case against the police officers charged with beating Rodney King. In 2020, after the murder of George Floyd at the hands of police officers in Minneapolis, large protests occurred in several California cities and counties. In Los Angeles, Riverside, and Orange County, protests turned violent when individuals at the protest damaged store windows and police cruisers. In one Los Angeles demonstration, protesters placed an L.A.P.D. officer in a chokehold and kicked him.
Large-scale protests always present a risk of violence, whether from the protesters themselves or counter-protesters that appear and cause trouble. Law enforcement must balance the rights of protesters to demonstrate peacefully and the need to maintain order and public safety when things spin out of control.
California prohibits participating in a riot and inciting a riot. California Penal Code section 404 defines a riot as follows:
- Any use of force or violence, disturbing the peace, or any threat to use force or violence
- Accompanied by immediate power of execution
- By two or more persons acting together
- Without authority of law
Participating in a riot is a misdemeanor offense. Upon conviction, an offender may face up to one year in county jail, a $1,000 fine, or both.
The crime of incitement to riot is similar. The elements of the crime are as follows:
- With the intent to cause a riot
- A person acts or engages in conduct
- That (1) urges a riot, or (2) urges others to commit acts of force or violence, or property damage (the burning or destroying of property)
- Under circumstances that produce a clear, present, and immediate danger
- Of acts of force or violence, or property damage
Incitement to riot is also a misdemeanor offense. Upon conviction, an offender will face up to one year of jail time, a $1,000 fine, or both. If an offender commits incitement to riot at a prison or county jail, resulting in serious bodily injury, then the offense can become a felony. The penalty can increase to up to three years in state prison.
Legal Defenses to Riot and Inciting a Riot
Most defense strategies for riot or inciting a riot focus on the protest's turmoil once things got out of hand. Common defenses in such cases may include:
- Mistaken identity: The defendant may claim that although present at the protest or rally, they did not engage in acts that amount to riot or incitement to riot. The defendant may use the chaos to question witness accounts of the defendant's role or behavior.
- No clear and present danger: The defendant may admit to some role in urging protestors to engage in violent acts. But they may deny that the circumstances presented any clear, present, and immediate danger. If the evidence supports this view, the defendant may seek a reduction in the charges to disorderly conduct or disturbing the peace.
- Self-defense or defense of others: The defendant may claim that misconduct of the police forced the defendant to engage in violent acts or to urge violent acts in self-defense or defense of others. Depending on the law of the jurisdiction, the defendant may claim a right to reasonably stand their ground if they perceived an assault by the police.
Get Legal Help With Your Riot or Inciting to Riot Charges
If you have been charged with rioting or incitement to riot at the federal or state level, you can face serious penalties. You will want to seek the best defense from a skilled attorney. Consider talking with a criminal defense attorney in your area today and learn how they can help.