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. 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 that define what constitutes a riot and incitement to riot. 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 have the ability to immediately act on the threat.
Inciting a riot, according to federal law, is defined as the acts of "organizing, promoting, encouraging, participating in a riot" and urging 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 acts of violence.
Protected Speech Versus Incitement
Citizens have a right to free speech, granted by the First Amendment of the 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, that speech is not constitutionally protected if it is intended to produce imminent lawless action 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. Cities can regulate the right of peaceable assembly by requiring permits or limiting demonstrations to a designated area. 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.
The laws regarding unlawful assembly have been challenged on First Amendment grounds but have recently been upheld by the courts in New York and Massachusetts.
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 or participating in or carrying on a riot or committing any act of violence in furtherance of a riot."
Federal law tends to be somewhat more limited in scope than state laws. A person is likely to be charged under state law instead.
Prosecutions in Both State and Federal Courts
Ordinarily, a person can be prosecuted for committing the same crime in both state and federal court, affirmed by the Supreme Court ruling in Gamble v. United States. In the case 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: Punishments and Protections
The punishments for rioting or inciting to riot under federal law include fines, imprisonment for up to five years, or both. State punishments vary by jurisdiction and may be more or less severe than the federal punishments. Consult with a local criminal defense lawyer regarding local criminal charges and punishment.
Get Legal Help With Your Rioting or Inciting to Riot Charges
If you have been charged with rioting or incitement to riot at the federal or state level, you face potentially serious penalties. Your defense should be carefully planned. Contact a local criminal defense attorney today and learn how they can help.