United States v. Robert Rundo ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50189
Plaintiff-Appellant,
D.C. No.
v. 2:18-cr-00759-
CJC-1
ROBERT PAUL RUNDO; ROBERT
BOMAN; TYLER LAUBE; AARON
EASON, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted November 17, 2020
Pasadena, California
Filed March 4, 2021
Before: Ferdinand F. Fernandez and Richard A. Paez,
Circuit Judges, and Jon S. Tigar,* District Judge.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by
Judge Fernandez
*
The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
2 UNITED STATES V. RUNDO
SUMMARY**
Criminal Law
The panel reversed the district court’s dismissal of an
indictment charging four defendants with conspiracy to
violate the Anti-Riot Act and three of those defendants with
substantively violating the Act, in a case in which the district
court held that the Act was unconstitutional on the basis of
facial overbreadth under the First Amendment.
The indictment charges that the defendants are members
of the “Rise Above Movement” or “RAM,” an organization
that represents itself “as a combat-ready, militant group of a
new nationalist white supremacy and identity movement.”
RAM members post videos and pictures online of their hand-
to-hand combat training, often interspersed with videos and
pictures of their assaults on people at political events and
messages supporting their white supremacist ideology.
Applying Brandenburg v. Ohio, 395 U.S. 444 (1969) (per
curiam), the panel held that most of the provisions of the Act
are reasonably construed as constitutional. The panel found
no violation of the First Amendment in the Act’s overt act
provisions; its definition of a riot; or in subparagraphs (1),
(2), and (4) of 18 U.S.C. § 2101(a), except insofar as
subparagraph (2) prohibits speech tending to “organize,”
“promote,” or “encourage” a riot, and 18 U.S.C. § 2102(b)
expands the prohibition to “urging” a riot and to mere
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. RUNDO 3
advocacy. The panel rejected the contention that the
provisions of the Act violate the heckler’s veto doctrine.
The panel held that by prohibiting protected speech
tending to “organize,” “promote” or “encourage” a riot and
by expanding that prohibition to “urging” a riot and to mere
advocacy, the Act criminalizes a substantial amount of
protected speech.
The panel held that the unconstitutional provisions of the
Act are severable, and that with such severance, the Act is not
facially overbroad, but rather prohibits unprotected speech
that instigates an imminent riot, unprotected conduct such as
committing acts in furtherance of a riot, and aiding and
abetting of that speech or conduct.
The panel remanded for further proceedings consistent
with the opinion.
Concurring in part and dissenting in part, Judge
Fernandez would not strike the concepts of organizing and
urging from the Act.
COUNSEL
Elana Shavit Artson (argued), David T. Ryan, and George E.
Pence, Assistant United States Attorneys; Christopher D.
Grigg, Chief, National Security Division; L. Ashley Aull,
Chief, Criminal Appeals Section; Nicola T. Hanna, United
States Attorney; United States Attorney’s Office, Los
Angeles, California; for Plaintiff-Appellant.
4 UNITED STATES V. RUNDO
Brianna F. Mircheff (argued), Deputy Federal Public
Defender; Office of the Federal Public Defender, Los
Angeles, California; Peter Carl Swarth, West Hills,
California; Jerome J. Haig, Torrance, California; John Neil
McNicholas, Redondo Beach, California; for Defendants-
Appellees.
Andrew Allen, Belvedere, California, for Amicus Curiae Free
Expression Foundation Inc.
OPINION
PER CURIAM:
The United States (hereafter, “the government”) appeals
from the district court’s dismissal of the indictment against
Defendants Robert Paul Rundo, Robert Boman, Tyler Laube,
and Aaron Eason.1 The Defendants were charged with
conspiracy to violate the Anti-Riot Act,2 and Rundo, Boman,
and Eason were also charged with substantively violating the
Act. The district court held that the Act was unconstitutional
on the basis of facial overbreadth under the First Amendment
to the United States Constitution.3 Because the Act is not
facially overbroad except for severable portions, we reverse
and remand.
1
Hereafter, unless otherwise indicated, we will refer to them
collectively as “the Defendants.”
2
18 U.S.C. §§ 2101–2102 (hereafter, “the Act”).
3
The district court did not reach the Defendants’ alternative
arguments. Nor do we. See, e.g., Amelkin v. McClure, 205 F.3d 293, 296
(6th Cir. 2000).
UNITED STATES V. RUNDO 5
BACKGROUND
The indictment charges that the Defendants are members
of the “Rise Above Movement” or “RAM,” an organization
that represents itself “as a combat-ready, militant group of a
new nationalist white supremacy and identity movement.”
RAM members post videos and pictures online of their hand-
to-hand-combat training, often interspersed with videos and
pictures of their assaults on people at political events and
messages supporting their white supremacist ideology.
Count One of the indictment charged the Defendants with
conspiring and agreeing to riot. It alleged that in furtherance
of the conspiracy, Rundo, Boman, and Eason recruited new
members to join RAM, which conducted combat training to
prepare them to commit violent acts at political rallies. The
Defendants participated in that combat training and traveled
to political rallies in Huntington Beach, California, and
Berkeley, California, where they attacked people. Rundo also
traveled to a political rally in San Bernardino, California,
where he confronted and pursued people. For RAM
recruitment purposes, Rundo and Boman posted information
about those violent acts on social media.
Count Two of the indictment charged Rundo, Boman, and
Eason with aiding and abetting one another in using facilities
of interstate commerce (the internet, a telephone, and a credit
card) with intent to riot from March 27, 2017, through April
15, 2017, and committing additional overt acts for that
purpose. During that time, Eason used a credit card to rent a
van and transported Rundo, Boman, and other RAM members
to the Berkeley rally. Eason also used text messages to
recruit individuals to attend combat training and the rally.
6 UNITED STATES V. RUNDO
Laube pled guilty to the only charge against him, Count
One. The remaining defendants moved to dismiss the
indictment. The district court granted their motion and
dismissed the indictment based on its conclusion that the Act
is facially overbroad. Laube thereafter moved to withdraw
his guilty plea and to dismiss the indictment against him for
the same reason. The district court granted Laube’s motion.
This appeal followed.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 18 U.S.C. § 3731.
We review de novo the dismissal of an indictment on the
ground that the underlying statute is unconstitutional. See
United States v. Afshari, 426 F.3d 1150, 1153 (9th Cir. 2005).
DISCUSSION
“[T]he constitutional guarantees of free speech and free
press” protect “advocacy of the use of force or of law
violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite
or produce such action.” Brandenburg v. Ohio, 395 U.S. 444,
447, 89 S. Ct. 1827, 1829, 23 L. Ed. 2d 430 (1969) (per
curiam).4 The Defendants contend that the Act is facially
overbroad in violation of the First Amendment because it
prohibits advocacy that does not incite an imminent riot.
4
Hereafter, sometimes referred to as “Brandenburg’s imminence
requirement.”
UNITED STATES V. RUNDO 7
The Defendants have the burden of establishing from both
“the text” language and “actual fact” that the Act is
substantially overbroad. Virginia v. Hicks, 539 U.S. 113,
122, 123 S. Ct. 2191, 2198, 156 L. Ed. 2d 148 (2003)
(citation omitted). We first construe the provisions of the
Act. See United States v. Williams, 553 U.S. 285, 293, 128 S.
Ct. 1830, 1838, 170 L. Ed. 2d 650 (2008). “[A] statute is
facially invalid if it prohibits a substantial amount of
protected speech.” Id. at 292, 128 S. Ct. at 1838. However,
“[i]nvalidation for overbreadth is strong medicine that is not
to be casually employed.” Id. at 293, 128 S. Ct. at 1838(citation and internal quotation marks omitted). Thus, we
construe the Act as constitutional if we can reasonably do so.
See United States v. Harriss, 347 U.S. 612, 618, 74 S. Ct.
808, 812, 98 L. Ed. 989 (1954).5 If there is a constitutional
infirmity, we must consider whether the Act is severable and,
if so, invalidate only the unconstitutional portions. See New
York v. Ferber, 458 U.S. 747, 769 n.24, 102 S. Ct. 3348, 3361
n.24, 73 L. Ed. 2d 1113 (1982).
The Act does have some constitutional defects. However,
those defects are severable from the remainder of the Act.
Thus, the district court erred when it dismissed the
indictment. We will explain.
5
See also Skilling v. United States, 561 U.S. 358, 408–09, 130 S. Ct.
2896, 2931, 177 L. Ed. 2d 619 (2010); Broadrick v. Oklahoma, 413 U.S.
601, 613, 616–18, 93 S. Ct. 2908, 2916, 2918–19, 37 L. Ed. 2d 830(1973); United States v. Cassel, 408 F.3d 622, 634–35 (9th Cir. 2005); cf.
Iancu v. Brunetti, __ U.S. __, __, 139 S. Ct. 2294, 2301, 204 L. Ed. 2d
714 (2019); Acosta v. City of Costa Mesa, 718 F.3d 800, 811–17 (9th Cir.
2013) (per curiam).
8 UNITED STATES V. RUNDO
I. Most of the provisions of the Act are reasonably
construed as constitutional
At its core, the Act states:
(a) Whoever travels in interstate or foreign
commerce or uses any facility of interstate or
foreign commerce, including, but not limited
to, the mail, telegraph, telephone, radio, or
television, with 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;
and who either during the course of any such
travel or use or thereafter performs or
attempts to perform any other overt act for
any purpose specified in subparagraph (A),
(B), (C), or (D) of this paragraph–
Shall be fined under this title, or imprisoned
not more than five years, or both.
UNITED STATES V. RUNDO 9
(b) In any prosecution under this section,
proof that a defendant engaged or attempted
to engage in one or more of the overt acts
described in subparagraph (A), (B), (C), or
(D) of paragraph (1) of subsection (a) and
(1) has traveled in interstate or foreign
commerce, or (2) has use of or used any
facility of interstate or foreign commerce,
including but not limited to, mail, telegraph,
telephone, radio, or television, to
communicate with or broadcast to any person
or group of persons prior to such overt acts,
such travel or use shall be admissible proof to
establish that such defendant traveled in or
used such facility of interstate or foreign
commerce.
18 U.S.C. § 2101(a)–(b).6 It continues:
(a) As used in this chapter, the term “riot”
means a public disturbance involving (1) an
6
In the original statute, § 2101(a) was labeled § 2101(a)(1) and
subparagraphs (1)–(4) were labeled subparagraphs (A)–(D). Pub. L. No.
90-284, Title I, § 104; 82 Stat. 75-76 (1968). In 1996, perhaps
recognizing that § 2101(a) contained only one paragraph, Congress
amended § 2101(a) “by striking ‘(1)’ and by redesignating subparagraphs
(A) through (D) as paragraphs (1) through (4), respectively.” Pub. L. No.
104-294, Title VI, § 601(f)(15); 110 Stat. 3488 (1996). Congress failed,
however, to amend the remaining text that refers back to “subparagraph[s]
(A), (B), (C), or (D).” See §§ 2101(a)–(b). We read the statute’s
references to subparagraphs (A)–(D) as referring to subparagraphs (1)–(4)
in § 2101(a). The parties do not dispute that interpretation. Cf. Graham
Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,
559 U.S. 280, 287 n.6, 130 S. Ct. 1396, 1402 n.6, 176 L. Ed. 2d 225(2010).
10 UNITED STATES V. RUNDO
act or acts of violence by one or more persons
part of an assemblage of three or more
persons, which act or acts shall constitute a
clear and present danger of, or shall result in,
damage or injury to the property of any other
person or to the person of any other individual
or (2) a threat or threats of the commission of
an act or acts of violence by one or more
persons part of an assemblage of three or
more persons having, individually or
collectively, the ability of immediate
execution of such threat or threats, where the
performance of the threatened act or acts of
violence would constitute a clear and present
danger of, or would result in, damage or
injury to the property of any other person or to
the person of any other individual.
(b) As used in this chapter, the term “to
incite a riot”, or “to organize, promote,
encourage, participate in, or carry on a riot”,
includes, but is not limited to, urging or
instigating other persons to riot, but 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
UNITED STATES V. RUNDO 11
acts of violence or assertion of the rightness
of, or the right to commit, any such act or
acts.
18 U.S.C. § 2102.7The Defendants attack the Act on a number of bases:
(A) the overt act provisions; (B) the provisions of
subparagraphs (1), (2), and (4) of § 2101(a); (C) the definition
of a riot; and (D) the heckler’s veto doctrine. We will now
consider each basis. In doing so, we emphasize that our duty
is to seek a reasonable construction of the Act that comports
with constitutional requirements, so long as the text is
“readily susceptible to such a construction.” United States v.
Stevens, 559 U.S. 460, 481, 130 S. Ct. 1577, 1591–92, 176 L.
Ed. 2d 435 (2010) (citation and internal quotation marks
omitted); see Harriss, 347 U.S. at 618, 74 S. Ct. at 812.
A. Overt act provisions
The Defendants argue that the travel in or use of any
facility of interstate or foreign commerce and “any other
overt act for any purpose specified in subparagraph [(1), (2),
(3), or (4)] of [subsection (a)]” are too far removed in time
from any riot to satisfy Brandenburg’s imminence
requirement. They liken the “overt act” in the Act to an overt
act for a conspiracy. See United States v. Harper, 33 F.3d
7The legislative history of the Act has been widely discussed
elsewhere. See United States v. Dellinger, 472 F.2d 340, 358–59, 363 (7th
Cir. 1972); id. at 410–12 (Pell, J., concurring in part and dissenting in
part); Miselis, 972 F.3d at 527–28; Marvin Zalman, The Federal Anti-Riot
Act and Political Crime: The Need for Criminal Law Theory, 20 Vill. L.
Rev. 897, 911–16 (1975).
12 UNITED STATES V. RUNDO
1143, 1148 (9th Cir. 1994). However, the Act is not a
conspiracy statute. And the travel in or use of a facility of
interstate or foreign commerce includes conduct, not just
speech. The government argues that the Seventh Circuit
Court of Appeals correctly read the references to the
somewhat unusual “overt act” language as more limited than
the scope envisioned by the Defendants.
We adopt the Seventh Circuit’s approach to the “overt
act” provisions. See United States v. Dellinger, 472 F.2d 340,
361–62 (7th Cir. 1972). In Dellinger, the court reasoned that
the “overt act” provision in § 2101(a) was amenable to two
meanings. In the first interpretation, “for any purpose
specified” could include speech that was only “a step toward”
one of the acts in subparagraphs (1)–(4). Id. at 362. In the
second, the words could reasonably be read to limit the
meaning of “overt act” to one of the specific acts
contemplated in subparagraphs (1)–(4). Id. In other words,
the provision could be construed to mean the acts in
subparagraphs (1)–(4) are goals, or are themselves the
required overt acts. Id. Although the first meaning does not
require “an adequate relation” between speech and action, the
second closely connects speech and action such that any First
Amendment concerns would arise from the conduct
criminalized in subparagraphs (1)–(4), rather than the overt
act provision itself. See id. Significantly, § 2101(b) also
supports that construction by specifically referring to “the
overt acts described in subparagraph [(1), (2), (3), or (4)] of
subsection (a).” See id.
We hold that the overt act requirement refers to acts that
fulfill the elements themselves, and not mere steps toward, or
UNITED STATES V. RUNDO 13
related to, one or more of those elements. Thus,
Brandenburg’s imminence requirement is not violated.8
B. Section 2101(a), subparagraphs (1)–(2), (4)
The Defendants contend that subparagraphs (1), (2), and
(4) of § 2101(a) are facially overbroad because they
criminalize speech that “urg[es],” “instigat[es],”
“organize[s],” “promote[s],” or “encourage[s]” a riot and
“advocacy of any act or acts of violence or assertion of the
rightness of, or the right to commit, any such act or acts.” We
will explain why we agree in part and disagree in part.
In effect, § 2102(b) indicates that the definitions of the
terms “to incite a riot” (from subparagraph 2101(a)(1)) and
“to organize, promote, encourage, participate in, or carry on
a riot” (from subparagraph 2101(a)(2)) together encompass
but are “not limited to, urging or instigating other persons to
riot” but do not encompass “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.” Because the statute itself defines these terms, we apply
the definitions contained in the statute and exclude any
8
We disagree with the Fourth Circuit’s conclusion that the “overt act”
provision in § 2101(a) indicates the Act is an attempt statute. See Miselis,
972 F.3d at 534–35. By analogizing to an attempt statute, the Fourth
Circuit sidesteps—and ultimately fails to address—the need to construe
the “overt act” provision in such a way that satisfies Brandenburg’s
imminence requirement.
14 UNITED STATES V. RUNDO
unstated meanings.9 See Stenberg v. Carhart, 530 U.S. 914,
942, 120 S. Ct. 2597, 2615, 147 L. Ed. 2d 743 (2000).
(1) Instigate: “Instigate” means “to goad or urge forward :
set on : PROVOKE, INCITE.”10 Likewise, “incite” means “to
move to a course of action : stir up : spur on : urge on.”11
Like the Fourth Circuit and the Seventh Circuit, we conclude
that speech that “incites” or “instigates” a riot satisfies
Brandenburg’s imminence requirement. See Miselis,
972 F.3d at 536, 538; Dellinger, 472 F.2d at 361–62.
Because even advocacy that is likely to cause an imminent
riot is unprotected,12 the Defendants’ argument that
9
Treating subparagraphs (1) and (2) alike, the Defendants argue,
would render the terms “organize,” “promote,” and “encourage” mere
surplusage. We think not. In any event, “statutes often contain
overlapping provisions . . . . Congress may have acted similarly in
drafting these statutes out of an understandable desire to make sure that no
form of [incitement to riot] be left out.” United States v. Carona,
660 F.3d 360, 369 (9th Cir. 2011); see also United States v.
Corrales-Vazquez, 931 F.3d 944, 957–58 (9th Cir. 2019) (Fernandez, J.,
dissenting); cf. Marinello v. United States, __ U.S. __, __, 138 S. Ct.
1101, 1107, 200 L. Ed. 2d 356 (2018); United States v. Cabaccang,
332 F.3d 622, 628 (9th Cir. 2003) (en banc).
10
Instigate, Webster’s Third New International Dictionary
(unabridged ed. 1986).
11
Incite, Webster’s Third New International Dictionary § 1
(unabridged ed. 1986); see also Incitement, Black’s Law Dictionary (11th
ed. 2019).
12
See White v. Lee, 227 F.3d 1214, 1227 (9th Cir. 2000).
UNITED STATES V. RUNDO 15
“instigate” does not demand imminence because it means “to
cause an event or situation to happen”13 fails.
(2) Urging: Urge “means simply to ‘encourage,’
‘advocate,’ ‘recommend,’ or ‘advise . . . earnestly and with
persistence.’” Miselis, 972 F.3d at 538 (alteration in original)
(citations omitted). We agree with the Fourth Circuit that,
“because earnestness and persistence don’t suffice to
transform such forms of protected advocacy into speech that
is likely to produce imminent lawless action, Brandenburg
renders the purpose of ‘urging’ others to riot overbroad.” Id.
(3) Organize: The verb “organize” is similarly overbroad.
Like “urge,” “organize” is not susceptible to a limiting
construction that brings it within Brandenburg’s strictures.
In Brandenburg, the Supreme Court considered a speech
given at a Ku Klux Klan rally. 395 U.S. at 445–46, 89 S. Ct.
at 1828–29. The speaker stated (1) “This is an organizers’
meeting,” (2) if the government “continues to suppress the
white, Caucasian race, it’s possible that there might have to
be some revengeance taken,” and (3) “[w]e are marching on
Congress July the Fourth, four hundred thousand strong.” Id.
at 446, 89 S. Ct. at 1829. The Court concluded that such
speech was protected under the First Amendment. Id. at 449,
89 S. Ct. at 1830 (holding the statute of conviction, “by its
own words and as applied, purports to punish mere
advocacy”). Thus, the use of the verb “organize” in
subparagraph 2101(a)(2) punishes protected speech.
13
Instigate, Cambridge Advanced Learner’s Dictionary (4th ed.
2013).
16 UNITED STATES V. RUNDO
(4) Encourage and promote: Moreover, like the Fourth
Circuit, we conclude that the First Amendment protects
speech tending to “encourage” or “promote” a riot. See
Miselis, 972 F.3d at 536–37. Black’s Law Dictionary defines
“encourage” as meaning “[t]o instigate; to incite to action; to
embolden; to help” and cross-references aiding and abetting.14
The Oxford English Dictionary’s definition of “encourage”
is similar but also includes “to recommend, advise.”15 The
latter definition fails Brandenburg’s imminence requirement.
The same is true for “promote,” which is synonymous with
“encourage.”16 See Miselis, 972 F.3d at 536–37; cf. Williams,
553 U.S. at 299–300, 128 S. Ct. at 1842 (explaining that “the
statement . . . ‘I encourage you to obtain child pornography’”
is “abstract advocacy” and is protected, but “promotes,” when
construed as “the recommendation of a particular piece of
purported child pornography with the intent of initiating a
transfer,” is not protected speech).
(5) Effect of § 2102(b) limitations: Additionally,
§ 2102(b) states that the terms in question “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.” The Defendants
argue that the double negative cancels itself out and that the
Act therefore proscribes mere “advocacy of any act or acts of
14
Encourage, Black’s Law Dictionary (11th ed. 2019).
15
Encourage, The Compact Oxford English Dictionary § 2(b) (2d ed.
1991).
16
See Promote, Webster’s Third New International Dictionary § 4(a)
(unabridged ed. 1986); see also Promote, The Compact Oxford English
Dictionary § 2(a) (2d ed. 1991).
UNITED STATES V. RUNDO 17
violence or assertion of the rightness of, or the right to
commit, any such act or acts.” See Miselis, 972 F.3d at 539;
see also Lester v. Parker, 235 F.2d 787, 790 n.5 (9th Cir.
1956) (per curiam). We agree. The First Amendment
protects that kind of advocacy. See Brandenburg, 395 U.S.
at 447, 89 S. Ct. at 1829.
We recognize that the Seventh Circuit construed the
exclusion to merely “forestall any claim . . . [that] advocacy
and assertion constitute mere advocacy of ideas or expression
of belief excluded under” § 2102(b) in the context of “a truly
inciting, action-propelling speech [that] include[d] advocacy
of acts of violence and assertion of the rightness of such
acts.” Dellinger, 472 F.2d at 363; see also In re Shead,
302 F. Supp. 560, 566 (N.D. Cal. 1969), aff’d on other
grounds sub nom. Carter v. United States, 417 F.2d 384 (9th
Cir. 1969). We do not believe that the words of the Act will
reasonably bear that construction.
“We must examine the meaning of the words to see
whether one construction makes more sense than the other as
a means of attributing a rational purpose to Congress.”
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1311 (9th
Cir. 1992). The “clear and present danger” test in the
definition of a riot illuminates Congress’s intent here. See
§ 2102(a). At one time, in deciding whether a statute violated
the First Amendment, courts considered “whether the words
used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to
prevent.” Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct.
247, 249, 63 L. Ed. 470 (1919). For example, under that test,
the First Amendment “would not protect a man in falsely
shouting fire in a theatre and causing a panic.” Id. But, mere
18 UNITED STATES V. RUNDO
advocacy of Communism also satisfied the clear and present
danger test. See Whitney v. California, 274 U.S. 357, 366,
371–72, 47 S. Ct. 641, 645, 647, 71 L. Ed. 1095 (1927),
overruled by Brandenburg, 395 U.S. 444, 89 S. Ct. 1827.
Brandenburg’s imminence requirement is more exacting
than the prior clear and present danger test. See Miselis,
972 F.3d at 532–33; Turney v. Pugh, 400 F.3d 1197, 1202
(9th Cir. 2005); see also United States v. Viefhaus, 168 F.3d
392, 397 n.3 (10th Cir. 1999); Shackelford v. Shirley,
948 F.2d 935, 937 (5th Cir. 1991). However, because
Brandenburg’s imminence requirement was not adopted until
after Congress passed the Act, there is no reason to determine
that use of the double negative was a drafting error. Cf.
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392,
1397–98, 99 L. Ed. 2d 645 (1988) (stating “courts will . . . not
lightly assume that Congress intended to infringe
constitutionally protected liberties”). Therefore, there is no
reason to deviate from the usual principle that Congress said
what it meant and meant what it said17 when it used the
double negative in § 2102(b).
(6) Aid or abet: The Defendants assert that “to aid or abet
any person in inciting . . . a riot” (from subparagraph
2101(a)(4)) is subject to the same definition as “to incite a
riot” (from subparagraph 2101(a)(1)). Thus, for the foregoing
reasons, aiding or abetting inciting a riot satisfies
Brandenburg’s imminence requirement.
17
See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,
530 U.S. 1, 6, 120 S. Ct. 1942, 1947, 147 L. Ed. 2d 1 (2000).
UNITED STATES V. RUNDO 19
In sum, subparagraphs (1), (2), and (4) of § 2101(a) do
not violate the First Amendment except insofar as
subparagraph (2) prohibits speech tending to “organize,”
“promote,” or “encourage” a riot, and § 2102(b) expands the
prohibition to “urging” a riot and to mere advocacy.
C. Riot and threat of riot
The Defendants assert that the very definition of a “riot”
is unconstitutional. We do not agree.
A “riot” requires either one or more “acts of violence” or
one or more “threats” to commit one or more acts of violence.
§ 2102(a). The completed acts of violence (or the threatened
acts of violence) must “constitute a clear and present danger
of, or . . . result in, damage or injury to the property . . . or to
the person of any other individual.” Id.
Acts of violence are not protected under the First
Amendment. See NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 916, 102 S. Ct. 3409, 3427, 73 L. Ed. 2d 1215(1982). Nor are “true threats,” which involve subjective
intent to threaten. See Cassel, 408 F.3d at 633; see also
Virginia v. Black, 538 U.S. 343, 359–60, 123 S. Ct. 1536,
1547–48, 155 L. Ed. 2d 535 (2003). “True threats” are not
limited to bodily harm only but also include property damage.
See Cassel, 408 F.3d at 636–37; see also Miselis, 972 F.3d
at 540; United States v. Coss, 677 F.3d 278, 283–84, 289–90
(6th Cir. 2012); United States v. Parr, 545 F.3d 491, 497 (7th
Cir. 2008).
“[W]e do not hesitate to construe” a statute punishing
threats “to require . . . intent” to threaten. Cassel, 408 F.3d
at 634; cf. Elonis v. United States, 575 U.S. 723, __, 135
20 UNITED STATES V. RUNDO
S. Ct. 2001, 2012, 192 L. Ed. 2d 1 (2015). By requiring proof
of “intent” and proof that the overt act was committed “for
[the] purpose” of a riot,18 which also indicates subjective
intent,19 Congress limited the “threats” part of the definition
of a riot to “true threats.” Thus, a “riot,” as defined in the
Act, is not protected under the First Amendment.
D. Heckler’s veto
The Defendants assert that the provisions of the Act
violate the heckler’s veto doctrine.
“A ‘heckler’s veto’ is an impermissible content-based
speech restriction where the speaker is silenced due to an
anticipated disorderly or violent reaction of the audience.”
Rosenbaum v. City and County of San Francisco, 484 F.3d
1142, 1158 (9th Cir. 2007); see also Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134–35, 112 S. Ct.
2395, 2404, 120 L. Ed. 2d 101 (1992) (“Speech cannot be . . .
punished . . . simply because it might offend a hostile mob.”).
The Defendants argue that the Act violates that rule. Not so.
Under its provisions, “the intent to engage in one of the
prohibited overt acts is a personal prerequisite to punishment
under [the Act] and necessarily renders any challenge based
on innocent intent . . . wide of the mark.” Nat’l Mobilization
Comm. to End the War in Viet Nam v. Foran, 411 F.2d 934,
938 (7th Cir. 1969); see also Lewis v. Wilson, 253 F.3d 1077,
1081 (8th Cir. 2001); Nelson v. Streeter, 16 F.3d 145, 150
(7th Cir. 1994). Simply put, knowing that some might choose
18
18 U.S.C. § 2101(a).
19
Cf. United States v. Wells, 519 U.S. 482, 489–90, 499, 117 S. Ct.
921, 926–27, 931, 137 L. Ed. 2d 107 (1997).
UNITED STATES V. RUNDO 21
to become violent is not at all the same as intending that they
do so.
II. The Act criminalizes a substantial amount of
protected speech
Again, when we apply the above construction, the Act
prohibits protected speech tending to “organize,” “promote”
or “encourage” a riot20 and expands that prohibition to
“urging” a riot and to mere advocacy.21 To that extent, we
agree with the Fourth Circuit that the Act criminalizes a
substantial amount of protected speech. See Miselis, 972 F.3d
at 540–41; cf. Williams, 553 U.S. at 298–99, 128 S. Ct.
at 1842.
III. The unconstitutional portions of the Act are
severable
Because the Act is not facially overbroad except as
indicated in parts I and II of this opinion, we must determine
whether the remainder of the Act may be salvaged by
severance. We are satisfied that it can be. Indeed, severance
is the remedy that must be applied when it is possible to do
so. See United States v. Booker, 543 U.S. 220, 258–59, 125
S. Ct. 738, 764, 160 L. Ed. 2d 621 (2005). And that can be
accomplished by severing small portions of the statutory
language—even words or phrases. For instance, last year,
20
§ 2101(a)(2).
21
18 U.S.C. § 2102(b).
22 UNITED STATES V. RUNDO
“seven Members of the Court”22 concluded that, even if the
Court did not utilize a robocall statute’s severability clause,
“the presumption of severability”23 required severance of the
following exception from the remainder of the statute:
“‘unless such call is made solely to collect a debt owed to or
guaranteed by the United States.’”24 We also have applied
the severance principle in that manner. See United States v.
Taylor, 693 F.2d 919, 921–22 (9th Cir. 1982) (severing a
single clause from a statutory provision); cf. Nat’l Mining
Ass’n v. Zinke, 877 F.3d 845, 865–66 (9th Cir. 2017) (stating
that courts have “severed” unconstitutional provisions “within
single sentences”). Other courts of appeals have done the
same. See, e.g., Miselis, 972 F.3d at 541–43; Lipp v. Morris,
579 F.2d 834, 835 & n.2, 836 (3d Cir. 1978) (per curiam).
Here, § 2101(a)(2)’s inclusion of “organize,” “promote”
and “encourage” and § 2102(b)’s inclusion of “urging or” and
“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” are severable from the remainder of the Act. See
Miselis, 972 F.3d at 542–43. We agree with the Fourth
Circuit and conclude that Congress would prefer severance
over complete invalidation. See id. at 543–44.
22
Barr v. Am. Ass’n of Pol. Consultants, Inc., __ U.S. __, __, 140 S.
Ct. 2335, 2343, 207 L. Ed. 2d 784 (2020).
23
Id. at __, 140 S. Ct. at 2354.
24
Id. at __ n.2, 140 S. Ct. at 2345 n.2.
UNITED STATES V. RUNDO 23
So severed, § 2101(a) states:
Whoever travels in interstate or foreign
commerce or uses any facility of interstate or
foreign commerce, including, but not limited
to, the mail, telegraph, telephone, radio, or
television, with intent–
(1) to incite a riot; or
(2) to 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;
and who either during the course of any such
travel or use or thereafter performs or
attempts to perform any other overt act for
any purpose specified in subparagraph (A),
(B), (C), or (D) of this paragraph–
Shall be fined under this title, or imprisoned
not more than five years, or both.
So severed, § 2102(b) states:
As used in this chapter, the term “to incite a
riot”, or “to participate in, or carry on a riot”,
includes, but is not limited to, instigating
24 UNITED STATES V. RUNDO
other persons to riot, but shall not be deemed
to mean the mere oral or written (1) advocacy
of ideas or (2) expression of belief.
With the above construction and severance, the Act is not
facially overbroad. Rather, the Act prohibits unprotected
speech that instigates (incites, participates in, or carries on) an
imminent riot, unprotected conduct such as committing acts
of violence in furtherance of a riot, and aiding and abetting of
that speech or conduct.
CONCLUSION
Once the offending language is elided from the Act by
means of severance, the Act is not unconstitutional on its
face. We recognize that the freedoms to speak and assemble
which are enshrined in the First Amendment are of the utmost
importance in maintaining a truly free society. Nevertheless,
it would be cavalier 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. Of
course, the government cannot act to avert a perceived danger
too soon, but it can act before it is too late. In short, a balance
must be struck. Brandenburg struck that balance,25 and the
Act (after the elisions) adheres to the result. Therefore, we
reverse the district court’s dismissal of the indictment and
remand for proceedings consistent with this opinion.
REVERSED and REMANDED.
25
Brandenburg, 395 U.S. at 447, 89 S. Ct. at 1829 (explicating the
imminence requirement).
UNITED STATES V. RUNDO 25
FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:
I concur in the per curiam opinion with two exceptions.
That is, I would not strike the concepts of organizing and
urging from the Act, and, to that extent, I dissent.
(1) I dissent from Part I.B.(2) of the per curiam opinion,
which eliminates the concept of urging from the Act.
Webster’s defines “urge,” in relevant part, as:
vt 1 : to present in an earnest or pressing
manner : press upon attention : insist upon :
plead or allege in or as if in argument or
justification : advocate or demand with
importunity . . . [3] b : to be a compelling,
impelling, or constraining influence upon :
serve as a motivating impulse or reason for
. . . 5 : to rouse from a dormant state or into
life, expression, or action : STIMULATE,
PROVOKE . . . ~ vi . . . 3 : to exercise an
inciting, constraining, or stimulating
influence.
Urge, Webster’s Third New International Dictionary
(unabridged ed. 1986). Likewise, the Oxford English
Dictionary defines “urge,” in relevant part, as “[t]o act as an
impelling or prompting motive, stimulus, or force; to incite or
stimulate; to exercise pressure or constraint.” Urge, The
Compact Oxford English Dictionary § 11 (2d ed. 1991). Not
only do those definitions include the concept of inciting, but
also their link to action denotes imminence. Further, speech
that urges violence or physical disorder in the nature of a riot
does not have the protection of the First Amendment. Cf.
26 UNITED STATES V. RUNDO
White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000). Based on
the foregoing, I am not persuaded by the Fourth Circuit’s
contrary interpretation of “urge”—that Brandenburg1 protects
speech that “‘urge[s],’” which “means simply to ‘encourage,’
‘advocate,’ ‘recommend,’ or ‘advise . . . earnestly and with
persistence.’” United States v. Miselis, 972 F.3d 518, 538
(4th Cir. 2020); cf. United States v. Dellinger, 472 F.2d 340,
361–62 (7th Cir. 1972). Rather, in the context of this statute,
“urge” indicates imminence of the riot danger.
(2) I dissent from Part I.B.(3) of the per curiam opinion,
which eliminates the concept of organizing from the Act. In
the context of an event or activity, like a riot, “organize”
means “to unify into a coordinated functioning whole : put in
readiness for coherent or cooperative action,”2 or “to arrange
by systematic planning and coordination of individual
effort.”3 Simply put, “organize” means “[t]o arrange
(personally); to take responsibility for providing (something);
to ‘fix up.’” Organize, The Compact Oxford English
Dictionary § 2(d) (2d ed. 1991). I agree with the Fourth
Circuit that “speech tending to organize a riot serves not to
persuade others to engage in a hypothetical riot, but rather to
facilitate the occurrence of a riot that has already begun to
take shape,” indicating imminence. Miselis, 972 F.3d at 537.
It is far from mere speech. It is the very purposeful, physical,
and concrete action of structuring people into an intentionally
1
Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 1829,
23 L. Ed. 2d 430 (1969) (per curiam).
2
Organize, Webster’s Third New International Dictionary § 2(b)
(unabridged ed. 1986).
3
Id. § 4(a).
UNITED STATES V. RUNDO 27
physically violent force, which is at least on the brink of
carrying out its mission. Although it might be reasonable to
organize some events into the far future, as I see it,
organizing a riot does not reasonably lend itself to that
interpretation.
Thus, I respectfully concur in part and dissent in part.