United States v. Miselis

Decision Date24 August 2020
Docket Number No. 19-4551,No. 19-4550,19-4550
Parties UNITED STATES of America, Plaintiff - Appellee, v. Michael Paul MISELIS, Defendant – Appellant. The Free Expression Foundation, Inc., Amicus Supporting Appellant. United States of America, Plaintiff - Appellee, v. Benjamin Drake Daley, Defendant – Appellant. The Free Expression Foundation, Inc., Amicus Supporting Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellants. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant Benjamin Daley. Raymond C. Tarlton, TARLTON | POLK PLLC, Raleigh, North Carolina, for Appellant Michael Miselis. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. Glen K. Allen, Baltimore, Maryland, for Amicus The Free Expression Foundation, Inc.

Before KING, DIAZ, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge King and Judge Rushing joined.

DIAZ, Circuit Judge:

Michael Paul Miselis and Benjamin Drake Daley entered conditional guilty pleas to one count each of conspiracy to commit an offense against the United States, in violation of 18 U.S.C. § 371, with the substantive offense being a violation of the Anti-Riot Act, 18 U.S.C. §§ 2101 – 02. The charges arise from the defendants' violent participation in three white supremacist rallies during the year 2017: two in their home state of California, and the third being the notorious "Unite the Right" rally in Charlottesville, Virginia.

On appeal, the defendants challenge their convictions on the grounds that the Anti-Riot Act is facially overbroad under the Free Speech Clause of the First Amendment, as well as void for vagueness under the Due Process Clause of the Fifth Amendment. Reviewing these issues de novo, Giovani Carandola, Ltd. v. Fox , 470 F.3d 1074, 1079 (4th Cir. 2006), we disagree that the statute is unconstitutionally vague. But we agree that it treads too far upon constitutionally protected speech—in some of its applications.

While the category of speech that lies at the core of the Anti-Riot Act's prohibition, called "incitement," has never enjoyed First Amendment protection, the statute sweeps up a substantial amount of speech that remains protected advocacy under the modern incitement test of Brandenburg v. Ohio , 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam), insofar as it encompasses speech tending to "encourage" or "promote" a riot under 18 U.S.C. § 2101(a)(2), as well as speech "urging" others to riot or "involving" mere advocacy of violence under 18 U.S.C. § 2102(b).

In all other respects, however, the statute comports with the First Amendment. And because the discrete instances of overbreadth are severable from the remainder of the statute, the appropriate remedy is to invalidate the statute only to the extent that it reaches too far, while leaving the remainder intact.

Finally, because the factual bases for the defendants' guilty pleas conclusively establish that their own substantive offense conduct—which involves no First Amendment activity—falls under the Anti-Riot Act's surviving applications, their convictions stand.

I.

We begin with an overview of the defendants' offense conduct, the procedural history, and the Anti-Riot Act.

A.

The defendants (who are residents of Southern California) began in early 2017 to associate with a local white supremacist group called the "Rise Above Movement," or "RAM" for short. Billing itself as a "combat-ready, militant group of a new nationalist white identity movement," the group's chief purpose was to attend "purported ‘political’ rallies" (typically organized by other groups) at which its members engaged in violent attacks on counter-protestors. J.A. 227, 232. And to prepare for such rallies, RAM members spent their weekends training in martial arts and other combat techniques.

The charges in this case arise from three such rallies held in 2017. The first took place on March 25, in Huntington Beach, California, where the defendants and their colleagues first obtained front-page notoriety for RAM by carrying out numerous assaults against counter-protesters. They celebrated this coverage among themselves and posted it on various white supremacist platforms to recruit new members to their ranks.

The second rally took place on April 15, in Berkeley, California. The defendants and a handful of other RAM members drove up to Berkeley the day before, riding together in an eleven-passenger rental van. Hundreds of white nationalists attended the rally, as did dozens of counter-protestors, and violence again broke out amongst the camps. In one clash, the defendants and their colleagues trampled a barrier separating the two camps and assaulted a group of counter-protestors. In another, after the rally had been broken up and the participants dispersed into the streets of downtown Berkeley, the defendants and their colleagues chased after another group of counter-protestors, whom they proceeded to punch, kick, and stomp; defendant Miselis even broke his hand in the effort.

After returning from Berkeley, RAM members became aware that the now-infamous "Unite the Right" rally would be held at Emancipation Park in Charlottesville, Virginia, on August 12, 2017. The rally had been organized by Jason Kessler, a self-styled "white advocate," to protest the City Council's vote to remove a statue of the Confederate general Robert E. Lee from the park. See Hawes Spencer & Sheryl Gay Stolberg, Virginia Town Is on Edge Over Confederate Statue , N.Y. Times, Aug. 12, 2017, at A12. The defendants and at least two of their RAM colleagues, Cole Evan White and Thomas Walter Gillen (who were later charged alongside them), each purchased roundtrip airfare to attend.

The defendants and their colleagues arrived in Charlottesville on August 11, 2017. That night, they joined hundreds of other white nationalists for a torch-lit march on the campus of the University of Virginia, just west of downtown Charlottesville. There, the torch-bearers chanted slogans such as "Blood and soil!" and "Jews will not replace us!" as they made their way to the statue of Thomas Jefferson in front of The Rotunda (the University's signature building), where they confronted a smaller group of student counter-protesters bearing a banner that read, "VA Students Act Against White Supremacy." J.A. 230, 235. A brawl ensued between the two camps, in which defendant Daley and other RAM members attacked multiple counter-protestors with their tiki torches.

The morning of August 12, the defendants arrived at Emancipation Park for the long-planned "Unite the Right" rally. But by 11 a.m., violence erupted (yet again) between groups of white nationalists and counter-protestors who had surrounded the park. See Sheryl Gay Stolberg & Brian M. Rosenthal, White Nationalist Protest Leads to Deadly Violence , N.Y. Times, Aug. 13, 2017, at A1. Police promptly declared the assembly unlawful and began to clear the park, while officials from the city declared a state of emergency, citing an "imminent threat of civil disturbance, unrest, potential injury to persons, and destruction of public and personal property." Id.

Much of the violence associated with the "Unite the Right" rally took place after it had been made to disperse, in the streets of downtown Charlottesville.1 For their part, the defendants engaged in several skirmishes both during and after the rally, including a clash near the 2nd Street NE entrance to the park in which they "collectively pushed, punched, kicked, choked, head-butted, and otherwise assaulted" a group of counter-protestors, and "not in self-defense." J.A. 231, 236.

B.

Following a federal investigation, the defendants (along with Gillen and White) were indicted on two counts each: (1) conspiracy to commit an offense against the United States, in violation of 18 U.S.C. § 371, with the underlying offense being the substantive violation set forth in Count 2; and (2) traveling in interstate commerce with intent to riot, in violation of the Anti-Riot Act, 18 U.S.C. §§ 2101 – 02.

The defendants moved to dismiss the indictment, raising numerous challenges. Following a hearing, the district court denied the motion. United States v. Daley , 378 F. Supp. 3d 539, 545 (W.D. Va. 2019). The defendants each pled conditionally guilty to Count 1 the next day, subject to their rights to appeal the constitutionality of the Anti-Riot Act. The district court thereafter sentenced Daley to a 37-month prison term, while Miselis received 27 months; each was also given two years of supervised release. They appealed.2

C.

Congress passed the Anti-Riot Act as a rider to the Civil Rights Act of 1968, amidst an era, not unlike our own, marked by a palpable degree of social unrest. See Anti-Riot Act, Pub. L. No. 90-284 § 104(a), 82 Stat. 73, 75–77 (April 11, 1968). The statute's passage followed on the heels of what has been deemed the "long, hot summer of 1967," in which more than 150 cities across 34 states witnessed riots stirred by issues such as racial injustice and the war in Vietnam. See generally Malcolm McLaughlin, The Long, Hot Summer of 1967: Urban Rebellion in America (2014). And the statute's immediate catalyst was the upheaval sparked anew, in over 100 American cities, by the assassination of Martin Luther King, Jr. on April 4, 1968. See Marvin Zalman, The Federal Anti-Riot Act and Political Crime: The Need for Criminal Law Theory , 20 Vill. L. Rev. 897, 912 (1975).

The turbulence that lingered throughout 1968 gave rise to most of the few cases in which courts have addressed—and upheld—the constitutionality of the Anti-Riot Act on overbreadth or vagueness grounds. See United States v. Dellinger...

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