President Donald Trump’s response to the unrest in American cities over the past several months often seems right out of 1968. So too are the laws his administration has used against many of the hundreds of defendants the Justice Department has charged in connection with riots and protests since the death of George Floyd in late May.
Attorney General William Barr, who as a college student in 1968 scrapped with protesters at Columbia University and who three months ago ordered the aggressive crackdown on demonstrations outside the White House, has encouraged top federal prosecutors to use a variety of federal laws against suspected rioters — including, most radically, sedition. The other statutes federal prosecutors have primarily leaned on are an anti-rioting statute and civil disorder law that were rushed through as amendments to the Civil Rights Act of 1968.
At the time, some senators objected to what one called the “helter-skelter method” used to adopt the anti-rioting amendments. Many senators worried the proposed laws encroached on state police power and were subject to abuse by “unscrupulous” federal prosecutors. Now, more than a half-century after they were passed, the seldom-used laws are poised to face new judicial scrutiny.
Under Barr, the Justice Department is prosecuting accused rioters for specific actions in violation of federal laws, like arson, but they’ve also found creative ways to go after offenses that don’t necessarily seem like issues begging for intervention from the federal government, like broken windows. In one case, in which the federal government argued a Molotov cocktail an “unregistered firearm” that was unlawfully possessed by a person with a felony conviction, the interstate commerce hook was that the bottle of Patron tequila he used was produced in Mexico. “Therefore, the Patron bottle would have traveled in and affected interstate or foreign commerce,” a Jacksonville Sheriff’s Office detective on a FBI task force wrote in an affidavit.
On Thursday, just 40 days before the presidential election, the Justice Department issued a press release that amounted to a roundup of the charges it brought in connection with anti-racist protests that DOJ said had been exploited by opportunists. DOJ said more than 300 individuals had been charged with crimes “ranging from attempted murder, assaulting a law enforcement officer, arson, burglary of a federally-licensed firearms dealer, damaging federal property, malicious destruction of property using fire or explosives, felon in possession of a firearm and ammunition, unlawful possession of a destructive device, inciting a riot, felony civil disorder, and others.”
About 30 defendants, according to the Justice Department, had been charged with offenses related to civil disorder, which DOJ itself has referred to as “an obscure, seldom-used criminal statute.” That invocation of such rarely used statutes, as well as DOJ’s creative interpretations of more commonly used ones, could spark a host of court challenges over unsettled areas of the law.
A Segregationist Push
The Anti-Rioting Act was most famously used against a group of defendants known as the Chicago Seven who organized demonstrations against the 1968 Democratic convention. (Their trial is the subject of a forthcoming Netflix movie.) A federal appeals court later overturned the convictions, but didn’t speak to the law’s constitutionality.
For the most part, the anti-rioting act has sat on the books unused. But more recently ― in large part because the federal government lacks a domestic terrorism statute that would cover much of the conduct of violent white supremacists ― the federal government has tried to use the anti-rioting act against violent neo-Nazis. Last month, a federal appeals court in Virginia narrowed the anti-riot act, finding provisions of it were unconstitutionally overbroad because they affected speech meant to “promote” or “encourage” a riot as well as speech involving “mere advocacy of violence.” Advocating for acts of violence, or asserting the rightness of violence, was protected First Amendment speech, the court found. Actions meant to organize a riot ― or give “concrete aid,” in the words of the court ― were still banned. The ruling came after the Free Expression Foundation ― an organization with ties to white nationalism ― moved to intervene on behalf of the neo-Nazi defendants, whose convictions were nevertheless upheld.
White supremacists weren’t the target Sen. Strom Thurmond (R-S.C.) had in mind when the former segregationist presidential candidate co-sponsored the anti-rioting provision to the Civil Rights Act of 1968. On the floor of the Senate, he said his amendment was needed to “protect society from the extremist element which advocates the destruction of our nation” and specifically named Black activists.
Thurmond, who as a 23-year-old white man had secretly fathered a child born to an underage Black maid that worked for his powerful family in apartheid South Carolina, later came to set a Senate record with his 24-hour filibuster of the Civil Rights Act of 1957 and switched to the Republican Party in part due to his opposition to the Civil Rights Act of 1964. During the floor debate over the anti-rioting measure, he emphasized the need for “law and order.” He mentioned several prominent Black activists whose conduct he wanted to target, including Stokely Carmichael and H. Rap Brown, both of whom were involved with the Student Nonviolent Coordinating Committee (SNCC) following the departure of the late Rep. John Lewis in 1966. Brown, following Carmichael’s departure, had moved to replace “Nonviolent” in SNCC’s name with “National,” and called violence “as American as cherry pie.”
Bettmann via Getty Images Senator Strom Thurmond (D-S.C.) is mobbed by reporters as he steps from the Senate Chamber after ending his 24-hour, 18-minute filibuster against the Civil Rights Bill on Aug. 29, 1957. Thurmond broke the record set in 1953 by Sen. Wayne Morse (D-Ore.).
The government, Thurmond said, “must be empowered to deal firmly and actively with these harbingers of anarchy who undoubtedly contributed substantially to the tragedies of our cities.”
Another Southern politician, Sen. Russell Long (D-La.), pushed the “civil disorder” statute, which was rarely used in the past half-century but which Barr’s Justice Department has recently deployed with some regularity.
Barr has recently complained that the Justice Department had “advanced and defended hyper-aggressive extensions of the criminal law” and said federal prosecutors all too often became “headhunters” who were “consumed with taking down their target.” He said justice should be “administered dispassionately.”
“It is a temptation sometimes to go after people rather than crimes,” Barr said. He complained that political pundits were constantly debating whether a political action constitutes “some esoteric crime” and “looking through statute books” for applicable laws that criminalize conduct they don’t like.
The Barr speech came the very same week that news stories reported the attorney general had asked prosecutors to consider bringing charges against Democratic mayors for their response to demonstrations in their cities.
Critics say the Justice Department appears to have done the same ― picked a defendant and then searched for a federal charge to bring ― in many cases against accused rioters. It doesn’t help that Barr has condemned protesters for their actual speech. Barr has said that the Black Lives Matter movement is “not interested in Black lives” and that the movement uses what he called a small number of Black people killed by the police “as props to achieve a much broader political agenda.” He said supporters of the loosely organized antifa movement were “essentially Bolsheviks” with “fascistic” tactics.
Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said the federal response looks “unusually aggressive,” especially given the context of the administration’s political rhetoric against demonstrators’ speech.
“The idea that the government would essentially waste resources poring through a statutory code to find something to charge protesters with is actually a great illustration of the problem of what’s going on here,” Eidelman said.
Lisa Hoppenjans, the director of the First Amendment Clinic at Washington University in St. Louis, said that even if some of the charges don’t ultimately hold up, that their use will have a chilling effect and that people will be deterred from speaking out and participating in future protests.
“There are plenty of laws available, including state laws, to punish the relatively small number of people engaging in violent and destructive acts in connection with recent protests, and those acts should be punished,” Hoppenjans said. “But the Department of Justice’s decision to aggressively pursue severe federal charges, including the alarming suggestion that prosecutors should pursue sedition charges, appears to be driven by a political agenda to shape public opinion and target and intimidate protesters.” (Note: Hoppenjans represented the author of the story when St. Louis County charged him and a Washington Post reporter after they were unlawfully arrested inside a McDonald’s in 2014. Authorities dropped the charges after we agreed not to sue over their officers’ unconstitutional conduct.)
Barr has told the FBI’s Joint Terrorism Task Forces (JTTF) to “identify criminal organizers and instigators” of riots. He later formed a Task Force on Violent Anti-Government Extremists to “develop detailed information about violent anti-government extremist individuals, networks, and movements.” So far, just as in the 1960s, the federal government has shown scant evidence of national coordination in rioting.
Chip Somodevilla via Getty Images U.S. Attorney General William Barr testifies during a House Judiciary Committee hearing on July 28. Barr faced questions from the committee about his deployment of federal law enforcement agents in response to Black Lives Matter protests and his role in using federal agents to violently clear protesters from Lafayette Square near the White House in June.
The legislative history of anti-rioting statutes, says Eidelman, “talked about the trope of ‘outside agitators,’ and basically furthers this incorrect narrative that when there are uprisings, when there is protest in the streets across the country in response to brutality, particularly against Black people, it’s not homegrown, it’s not real, it’s just the work of these particular bad actors crossing across state lines to incite. And I think that’s a trope we continue to see today.”
“It’s really troubling that when people are out on the streets with a clear message, with a clear problem, that the response is to get them off the streets rather than engage on the substance of what they’re talking about,” Eidelman said.
Steve Kanter, the dean emeritus of Lewis & Clark Law School, called the civil disorder statute “really amazingly broad” and a law that “really doesn’t have guardrails on it.” Just like other broad statutes, like resisting arrest or vagrancy laws, it allows law enforcement to cast a broad net.
“I think there are severe constitutional problems with it, especially given the developments in civil liberties law and the Supreme Court over the last 40 to 50 years,” Kanter said. “Even if it were to be upheld, it would have to be very sharply narrowed to avoid the constitutional problems.”
One thing that has changed since the 1960s: The internet has made it a lot easier to claim someone was inciting a riot. The feds scoured social media to find defendants to charge with inciting riots. Nowadays, with the availability of statistics on followers and the reach of social media posts, the government might have more luck making the case that online speech incited riots.
Ca’Quintez Gibson, 26, was charged over Facebook Live videos, as was 30-year-old Carlos Matchett and 19-year-old Shamar Betts. Jaywuan Peavy, 19, was charged over rhetoric on his Facebook account. Dominic Brown, 18, was charged over Snapchat videos. (Several of the cases were identified in this Lawfare post.)
The feds already dropped charges against Michael Avery, a Ferguson activist who was arrested over Facebook posts, after a judge pushed back on a federal prosecutor who claimed Avery helped incite looting that took place when he was in law enforcement custody. “I honestly didn’t know what I did at the time when they came for me other than I’d been talking and running my mouth a lot,” Avery later said.
The debate over the rioting and civil disorder statutes unfolded days after the release of a report by the Kerner Commission, which was formed by President Lyndon Johnson (D) to examine the riots of 1967. To Johnson’s apparent surprise, the report lambasted white society for creating, maintaining and condoning the creation of a separate and unequal society. “Johnson Unit Assails Whites in Negro Riots,” declared The New York Times.
One of the many issues addressed in the remarkable and prescient Kerner Commission report are rioting statutes, which the group found were often “dangerously” vague and in “need of review and revision.”
“Some that deal with incitement to riot are so broad that they may improperly inhibit the constitutional right of free speech. Some that provide no definition of ‘incitement’ or comparable terms are dangerously vague. Those that define a riot in terms of groups containing as few as three persons may be applied in situations where nothing even approaching truly riotous activity is taking place,” the Kerner report stated. “These statues should be tightened.”
Underwood Archives via Getty Images The Kerner Commission in session, Washington D.C, 1967. Officially called the National Advisory Commission on Civil Disorders, it was created by President Lyndon Johnson to investigate the causes of the 1967 race riots in the United States and to provide recommendations for the future.
The commission report said that a “tightly-drawn federal control statute might play a limited, but important, role in dealing with disorders.”
Congress didn’t really heed those warnings. Days after the commission’s report ― and just weeks before a gunman killed Martin Luther King Jr., whose murder sparked riots across the country and pushed the House to send the Civil Rights Act of 1968 to President Johnson’s desk ― Thurmond and Sen. Frank Lausche (D-Ohio) proposed their anti-rioting statute as an amendment. Sen. Long proposed his civil disorder statute the next day.
There was some debate over whether the Thurmond-Lausche amendment was germane to the civil rights legislation on the table. Sen. Philip Hart (D-Mich.) said the amendment “goes into an area where legislation is extremely difficult” and noted that the Judiciary Committee had been weighing how to prudently curb rioting, but within constitutional limits. Such a critical topic, Hart said, “does not lend itself to writing on the floor of the Senate.”
Sen. Hugh Doggett Scott (R-Pa.) said it wasn’t wise to rush “too hastily” and “perhaps with ill-considered judgment” to adopt an amendment, he said, that would be “unwise and premature.”
“This is no way to legislate,” said Sen. Ernest Gruening (D-Alaska). “It is highly undesirable when an amendment dealing with an important issue such as rioting is altered verbally on the floor by the changing of words and punctuation so that it is difficult to get its full import.”
Sen. Joseph Tydings (D-Md.) said the Senate’s “helter-skelter method, without thought, and without bringing in local prosecutors and law enforcement officials, does not seem to me to be the wisest way to legislate.”
There was also debate over whether the anti-rioting amendment and civil disorder amendments gave the federal government too much power to go after conduct more properly handled by state authorities.
Sen. Henry Jackson (D-Wash.) worried that an “unscrupulous” U.S. attorney might use the civil disorder statute to charge high school students who “after a football game, became involved in a good, old-fashioned riot and broke into a warehouse and three or more took some apples.”
Sens. Jackson and Tydings, himself a former top federal prosecutor, questioned whether there was a state in the union that didn’t have a statute against looting already on the books, and whether it made sense for the federal government to “preempt” the entire area of prosecution from local law enforcement.
“I, for one, do not think it is the function of the Senate to preempt local law enforcement from enforcing its own laws,” said Tydings. “There is not a state in the nation which does not have laws on its books now to cover most of the points the Senator has mentioned this afternoon.”
Another senator questioned whether it was hypocritical for politicians who proclaimed to care so much about states’ rights to create another way for the federal government to encroach on state powers.
“It seems a little unusual that some of those who are usually so interested in the preservation of states’ rights, and in so many instances, rightfully so, are so quick to abdicate the police power of the states in this particular situation,” said Sen. Robert Griffin (R-Mich.).
Another senator wondered if mid-century college hijinks would now be subject to federal law under the civil disorder statute.
“In the old days … Men would leave their own dormitory and would go and raid the quarters of the women and steal their panties,” Sen. Peter Dominick (R-Colorado) said. “The senator from Louisiana might remember that. Under the terms of the amendment, that would be civil disorder, because it involves more than three people and creates a ruckus on campus, and every time one of the fellows takes a pair of panties as a souvenir, he will become chargeable with a federal crime, subject to a fine of $10,000 and three years in jail. Is that not the type of problem we get into if we agree to this kind of amendment?”
(No, said Sen. Long: Women’s dormitories were not a business establishment.)
Sen. Hart worried the statute would impact sports-related riots.
“I can imagine three fellows yanking out a goal post. I can imagine three kids throwing snowballs along the roadside,” Hart said. “The riot follows, and there you are.”
The legislators advocating for more aggressive federal action against rioters, looters, protesters and civil rights activists ultimately won out. And the legislative record leaves no doubt about what kind of people legislators had in mind.
“People ask, ‘Why don’t you do something about H. Rap Brown and Stokely Carmichael?’ If Senators want to do something about it, they should adopt this measure, rather than give the prosecutor a dead letter,” Long said. “Let us face it: This administration ― and I suppose it was true of the last one and will be true of the next one ― seeks to avoid the sad duty of prosecuting a civil rights leader who starts a riot. But if we adopt this amendment, they have the duty, and cannot shirk it, of prosecuting those who start riots.”
Much of the debate in 1968 would be perfectly at home in 2020. Sen. Sam Ervin (D-N.C.) claimed, in 1968, that it was “very difficult today to recruit police officers, because they are constantly charged, every time they attempt to enforce the law, with police brutality.”
Thurmond, like Trump and Barr, was particularly worried about the federal government policing law enforcement, saying that the threat of federal prosecution was “no way to bolster law enforcement personnel in this country.”
“We are in an era of lawlessness,” Thurmond declared. “If we are to maintain freedom by maintaining law and order, it is essential that we not put stumbling blocks before our police officers.” (Years later, Trump would urge police officers to commit crimes by bashing handcuffed arrestees’ heads on police cars.)
Trump has encouraged aggressive crackdowns on protesters and claimed that his friend saw a “plane loaded with thugs,” floating the popular theory that outside agitators were responsible for spreading chaos. Thurmond, back in 1968, urged his colleagues to pass his anti-rioting amendment so that “individuals who fly from city to city inciting to riot could be arrested and dealt with firmly under the law.”
Chris Mathias contributed to this story.
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