White supremacists’ riot charges back on
A federal appeals court reinstated rioting charges Thursday against the leader of a white supremacist group and three followers over violence in Berkeley and two Southern California cities in 2017, ruling that a federal ban on inciting an imminent riot does not violate free speech.
Robert Rundo, founder of the Rise Above Movement, and three followers were accused of rioting and conspiracy by recruiting members, training them for violent combat, making travel arrangements and taking part in clashes with foes of thenPresident Donald Trump in the spring of 2017 in Berkeley and Huntington Beach (Orange County).
Rundo was also accused of rioting in San Bernardino in
June 2017. An FBI agent’s affidavit said videos showed Rundo slugging counterprotesters in Huntington Beach and punching a Berkeley police officer in the head, and showed similar acts by his followers.
The charges were dismissed in 2019 by U.S. District Judge Cormac Carney of Los Angeles, who said the law under which they were charged, the AntiRiot Act of 1968, punished communication, not violence, and therefore violated freedom of speech.
“A defendant could be convicted for renting a car with a credit card, posting about a political rally on Facebook, or texting friends about when to meet up,” Carney said, and even those with a “hateful and toxic ideology,” like these defendants, are protected by the
First Amendment.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said Thursday that some parts of the federal law are constitutional because they prohibit actions aimed at inciting imminent violence, a standard set by the Supreme Court in 1969.
The 1968 law “prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot,” as well as taking part in or aiding actual violent conduct, the threejudge panel said.
It makes no sense, the court said, “to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or
have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them.”
On the other hand, the court majority said, provisions that make it a crime to organize a riot, or to “encourage,” “urge” or “promote” future acts of violence, violate free speech because they are not closely connected to imminent violence.
Judge Richard Paez and U.S. District Judge Jon Tigar of Oakland, temporarily assigned to the appeals court, signed the majority opinion. In a partial dissent, Judge Ferdinand Fernandez said encouraging or organizing a future riot “has a link to action” and could be prosecuted without violating free speech.
The ruling returns the case to Carney’s court to reassess charges against Rundo and codefendants Robert Boman, Tyler Laube and Aaron Eason. Laube initially pleaded guilty to conspiracy but was allowed to withdraw the plea after Carney ruled the charges unconstitutional.
There were no immediate comments from lawyers in the case.