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GPSolo Magazine

GPSolo September/October 2023: Protest or Riot: An Overview of Accountability

First Amendment Rights During a Period of American Civil Unrest

John S Austin


  • While the right to protest is one of the oldest and most protected rights in our democratic system, the rights under the First Amendment’s Free Speech Clause are not absolute.
  • The Supreme Court’s Brandenburg test holds that the government may prohibit speech advocating the use of force or crime if the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
  • 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.
  • Legislatures and courts continue to address public safety concerns while balancing the rights of citizens to free speech and freedom to demonstrate.
First Amendment Rights During a Period of American Civil Unrest
Giuseppe Lombardo via Getty Images

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Americans cherish their right to peacefully protest and make their voices heard under the First Amendment. In just the last few years, the public has witnessed a number of massive protests, ranging from those after the death of George Floyd, to those concerning women’s reproductive rights, to those in protest of the election results of 2020. While the right to protest is one of the oldest and most protected rights in the U.S. democratic system, as U.S. District Judge Tanya Chutkan said during a hearing in United States v. Trump, 23 CR 257-TSC (D.C.), the rights under the First Amendment’s Free Speech Clause are “not absolute.” However, when does a peaceful protest turn into a riot? And when do words spoken in a peaceful protest turn into “inciting a riot”? The answers to these questions may be determined under both federal law and state law.

Free Speech Versus Inciting a Riot

Most states have adopted laws that criminalize riots and inciting a 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 (18 U.S.C. § 2102(a)). The law includes threats of violence if those involved have the ability to act immediately on the threat.

According to federal law, those who “organize, promote, encourage, participate in, or carry on a riot” can be charged with inciting a riot (18 U.S.C. § 2101(a)). The Code further defines what is not a violation: inciting a riot “shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, 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” (18 U.S.C. § 2102(b)). To qualify as incitement, the speech must advocate violence, the rightness of violence, or the right to commit acts of violence.

Americans enjoy a right to free speech, granted by the First Amendment of the Constitution. The extent of the First Amendment has been continually tested and strongly protected at all levels of government. But as Judge Chutkan said, free speech is not unlimited.

The U.S. Supreme Court developed its “clear and present danger doctrine” in Schenck v. United States, 249 U.S. 47 (1919). The Court upheld the Espionage Act, stating it did not violate the First Amendment:

Writing for a unanimous Court, Justice Oliver Wendell Holmes concluded that courts owed a greater deference to the government during wartime, even when constitutional rights were at stake. Articulating for the first time the “clear and present danger test,” Holmes concluded that the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent.

Schenck v. United States, Oyez (last visited Aug. 21, 2023).

Holmes famously compared the widespread dissemination of leaflets designed to disrupt the conscription process as akin to falsely shouting “fire” in a crowded theater.

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court held that speech is not constitutionally protected if it is intended to produce imminent lawless action and is likely to do so. Defendant Clarence Brandenburg had addressed a small gathering of fellow Ku Klux Klan members in Hamilton County, Ohio. Invited press reporters recorded the address, where Brandenburg complained about the fate of the “white Caucasian race” at the hands of the government. He made anti-Semitic and racist statements and spoke of the possibility of “revengeance” (sic) if the federal government and Court continued to “suppress the white, Caucasian race.” He also announced that the Klan members were planning to march on Washington, D.C., on Independence Day.

A jury convicted Brandenburg of violating Ohio’s Criminal Syndicalism law, which made it a crime to “advocate . . . the duty, necessity, or propriety of crime, sabotage, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” (Ohio Rev. Code Ann. § 2923.13). He was fined and sentenced to serve one to ten years in prison. Despite receiving little attention from the Ohio appellate courts, the Supreme Court accepted the case under a writ of certiorari.

In overturning the conviction, the Supreme Court adopted the Brandenburg test. The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:

  1. The speech is “directed to inciting or producing imminent lawless action,” and
  2. The speech is “likely to incite or produce such action.”

Brandenburg, 395 U.S. at 447.

A Split among Circuits

The limits of free speech are still being defined in the courts. In United States v. Rundo (Rundo II), 990 F.3d 709 (9th Cir. 2021), the Ninth Circuit found that statutory language in the federal riot statute that criminalizes “promoting” or “encouraging” a riot was overly broad. Further, it addressed a split among the circuit courts, as the Fourth and Seventh Circuits took different approaches in applying the Act’s overt act provisions.

The Seventh Circuit determined that an individual’s conduct does not violate the Act when the individual’s actions are merely steps to incite, promote, or aid in the furtherance of a riot. Instead, the actions of the individual must be closely connected to his or her speech.

In Rundo II, the Ninth Circuit’s opinion discussed 18 U.S.C. § 2101(a)(1)–(2), (4). In the words of author Alex Krasne,

Defendants argued that the language of the subparagraphs (1), (2), and (4) were also overly broad and unconstitutional. In the subparagraphs, the Ninth Circuit focused on the words “urging,” “organizing,” and “encourage[ing] and promot[ing],” to find that it preferred . . . to sever the unconstitutional language from the Act. In this instance, the Ninth Circuit determined that the words “urging” and “organizing” did not meet the Brandenburg imminence requirement because the definitions of those words fell short of contemplating an immediate action. The Ninth Circuit adopted the Fourth Circuit’s approach where terms such as “urging” and “organizing” did not lead to speech that was likely to cause imminent lawless action.

Alex Krasne, Applying the Anti-Riot Act: From ANTIFA to Insurrectionists, 56 UIC L. Rev. 141, 155 (2022) (internal citations omitted).

The Fourth Circuit found that the Act’s use of “urging,” “organizing,” “encourage[ing] and promot[ing]” was too broad and infringed on protected speech, which comes from a similar Fourth Circuit case, United States v. Miselis, 972 F.3d 518 (4th Cir. 2020).

Again, per Krasne,

The Fourth Circuit decided that the overt act provisions were similar to overt acts regarding an attempt statute. Under attempt statutes, an overt act would be considered a “substantial step” taken in the completion of a crime. In other words, the Fourth Circuit associated the overt act provisions as “substantial steps” where an individual’s conduct to either organize, aid, or commit any act of violence in furtherance of a riot violated the Act. The Ninth Circuit rejected this approach, however, because considering the overt act provisions as mere “substantial steps” did not resolve the Brandenburg imminence requirement issue. Unlike conspiracy or attempt statutes, to satisfy Brandenburg, the person’s conduct must be directed and have a likelihood of inciting imminent unlawful action. In the case of attempt, an individual’s “substantial step,” or significant conduct to complete a crime, does not have to be moments before the crime is committed. By utilizing the “substantial step” approach from attempt statutes, the Fourth Circuit “sidestep[ped]” the imminence issue altogether.

Id. at 163–64 (internal citations omitted).

The Supreme Court has yet to rule on a case to clarify the various interpretations of the Brandenberg test.

Freedom of Assembly Versus Rioting

The right to freedom of assembly, also found in the First Amendment of the Constitution, is similarly not unfettered. Towns and cities can constitutionally regulate the right of peaceable assembly by requiring permits or limiting demonstrations to a designated area. If a group of people gather with the intent to disturb the public peace, they could be charged under state or municipal law with unlawful assembly or a similar offense. When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous decision De Jonge v. Oregon, 299 U.S. 353 (1937), it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental” (id. at 364).

Edwards v. South Carolina, 372 U.S. 229 (1963), is a seminal case in the Civil Rights movement. The case began in March 1961, when nearly 200 African Americans—mainly college and high school students—marched from a church to the statehouse in Columbia, South Carolina. During their journey, they sang religious hymns and carried signs bearing the message “Down with Segregation.”

Jim Clyburn, later a long-serving member of the U.S. House of Representatives, participated in the march on the state capital. “We knew we were going to be arrested and we felt and said all I have to do is get my case to the United States Supreme Court because of the decision issued in 1954, Brown v. Board of Education,” he said in an interview with WACH (Columbia, South Carolina) on February 25, 2013. “We just knew we would be vindicated.”

Although the march was peaceful, the police, on the instruction of the city manager, arrested 187 of the marchers for disorderly conduct or breach of the peace—a common tactic used in that era to mute the messages of Civil Rights protesters. “I will always wear those arrests as a badge of honor,” Clyburn said. “We knew what we were doing was right and we had the courage of our convictions” (id.).

In Edwards v. South Carolina, the Supreme Court ruled for the protesters and overturned their state law convictions. The Court held that South Carolina had violated the protesters’ First Amendment rights to peaceful expression, assembly, and petition. These rights apply to the states through the Fourteenth Amendment’s Due Process Clause. The Court emphasized that the protest had been peaceful and law-abiding. “If . . . the petitioners had . . . violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case” (Edwards, 372 U.S. at 236). Rather, they had been arrested and convicted simply for expressing unpopular views. The evidence “showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection. . . . The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views” (id. at 237).

State and Federal Jurisdiction

State laws apply to anyone present in any given state for the commission of the criminal act. However, such acts may be prosecuted in federal court under the following circumstances:

  • Federal property. The rioting occurred on federal lands, federal government buildings, VA hospitals, or military bases.
  • Interstate travel. The defendant traveled between states or countries to participate in a riot and not for legitimate travel purposes.
  • Interstate communications and commerce. The defendant used interstate or foreign commerce (such as the Internet, mail, telephone, radio, television, or social media) to communicate intent:
  1. to incite a riot; or
  2. to organize, promote, encourage, participate in, or carry on a riot; or
  3. to commit any act of violence in furtherance of a riot; or
  4. to 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. . . .

18 U.S.C. § 2101(a).

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

Generally, a defendant 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, 139 S. Ct. 1960 (2019). In the case of rioting, however, the federal statute specifically subordinates federal prosecution if the defendant has been tried under state law. The Act states that a judgment, conviction, or acquittal under state law “shall be a bar to any prosecution . . . for the same act or acts” under federal law (18 U.S.C. § 2101(c)).

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. As exemplified by the sentencing of the defendants of the January 6, 2021, riot at the U.S. Capitol, courts have widely varied from the Federal Sentencing Guidelines, ranging from no jail time to more than ten years in jail.

State punishments vary by jurisdiction and may be more or less severe than the federal punishments. As a result of the civil unrest after the death of George Floyd, many state legislatures have increased punishments under state law to discourage civil unrest. Many of the new laws face constitutional challenges.

For example, the American Civil Liberties Union (ACLU) is going to federal court to try to block North Carolina’s new anti-riot law. Governor Roy Cooper decided not to use his veto stamp against the law, which is scheduled to take effect on December 1, 2023.

“Amended and expanded in March 2023 in response to recent mass protests against police killings of Black people, the Anti-Riot Act impermissibly criminalizes North Carolinians who exercise their fundamental free speech, assembly, and petitioning rights,” ACLU lawyers wrote in its complaint. “The Act violates the First and Fourteenth Amendments to the United States Constitution and article I, sections 12, 14, and 19 of the North Carolina Constitution” (ACLU of North Carolina v. Josh Stein, 1:23 cv 302 (M.D.N.C.)).


Legislatures and courts continue to address public safety concerns while balancing the rights of citizens to free speech and freedom to demonstrate. As some legislatures attempt to thwart peaceful protests, the question becomes whether the courts will allow them to do so.