'Riot' Bill Is Unconstitutional

by Matthew Rothschild, Executive Director

May 18, 2017

Republicans in the Wisconsin legislature have drafted another unconstitutional bill that limits free speech.

Not content to try to limit the right of students to express disagreement during a speech on university property, now Republicans are trying to pass another bill that infringes on people’s right to speak and assemble.

This one would make it a felony to “riot,” and you could face three and a half years in jail for it and be fined $10,000.

The bill defines “riot” in a ridiculously and unconstitutionally broad way.

On the ridiculous side, the bill states that a minimum of three persons assembled together would constitute a group that is capable of engaging in a riot. That seems like an awfully small number.

Then, to qualify as a riot, one of two things must happen, the bill says.

First, there must be “an act of violence by one or more persons” of the group. Note that all three persons (or even all 300 persons if the group was that big) could be found guilty even if just one of them engages in the violence. Plus, the act of violence doesn’t have to do actual damage to people or property. It just has to constitute “a clear and present danger of . . . damage or injury to the property of any other person or to another person.”

Second, under the bill, even if there is no act of violence at all, you can still be convicted of engaging in a riot so long as a member of the group issues a threat of violence. The bill states that it’s a riot when there is “a threat of the commission of an act of violence by one or more persons that are part of an assembly of at least three persons having, individually or collectively, the ability of immediate execution of the threat, if the performance of the threatened act of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person to another person.”

But what constitutes a “threat”? How explicit does it need to be? Note that the U.S. Supreme Court has ruled on several occasions that vague threats of violence are protected under the First Amendment. As it pertains to threats, this piece of legislation is unconstitutional. In the landmark U.S. Supreme Court case Brandenburg v. Ohio in 1969, the court ruled that speech can be prohibited only if it is "directed at inciting or producing imminent lawless action" and it is "likely to incite or produce such action." Nothing in this Wisconsin bill stipulates that the threat must be “imminent” or “likely to incite or produce” an act of violence. All it says is that at least one person in the group has “the ability” to immediately execute the threat. That’s quite different.

For instance, one of the group members could say, “If this injustice goes on much longer, we should go break some windows.” Under the bill, the speaker—and indeed everyone in the assembled group—could be guilty of the felony because at least one of them, and probably most of them, could throw something through a window (thus meeting the bill’s requirement to have “the ability of immediate execution of the threat”). But under Brandenburg, that is not sufficient, since the threat itself wasn’t “imminent.” Nor would this bill’s prohibition of threats pass muster under other U.S. Supreme Court rulings, such as Watts v. United States (1969) or NAACP v. Claiborne Hardware (1982).

Besides being unconstitutional, this bill is unnecessary. Violent acts are already crimes. Damage to property is already a crime. Direct, imminent threats to specific persons are already crimes. Failure to disperse is already a crime. Disorderly conduct is already a crime. Conspiracy is already a crime.

We don’t need more criminal statutes that cover essentially the same ground.

Nor do we need more criminal statutes that are aimed at people who are protesting police violence. Let’s be clear here: Most riots over the last six decades in America have occurred in response to police brutality. This bill appears to be aimed at those protesters. The authors of the bill, Representatives John Spiros and Senator Van Wanggaard, in a letter to their colleagues, said the bill was in response to “an increase in the number of high-profile riots across the country.”

Again, there are laws against violence, looting, and arson. We don’t need laws that penalize assembly and speech.

And if you want to reduce riots, reduce police brutality.