Federal Appeals Court Upholds Riot Act Conviction of Nationalists While Simultaneously Declaring Law Mostly Unconstitutional to Protect “Antifa”

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The 4th Circuit Court of Appeals in Virginia has ruled that the 1968 Anti-Riot Act is partially unconstitutional, yet upheld the convictions of nationalist appellants Michael Miselis and Benjamin Daley. 

Miselis and Daley pled guilty to “conspiracy to riot” charges in 2019 after engaging in self-defense against “antifa” attackers at the Unite the Right rally in Charlottesville on August 12th, 2017. Miselis and Daley were prosecuted using the questionable and rarely used law by former US Attorney Thomas Cullen after a far-left group released a propaganda movie portraying their martial arts club, the Rise Above Movement, as a terrorist organization. Cullen’s case against the men relied heavily on “evidence” he obtained from “antifa” anarchist blogs and heavily editorialized media. 

Miselis and Daley pled due to their lack of ability to obtain a fair trial in the court of Judge Norman Moon. The Anti-Riot Act was also used to prosecute Rise Above Movement members in California, but was thrown out as unconstitutional by Judge Carmac Carney and defendants were released.  

In the Virginia case, a 46 page opinion authored by Obama appointee Albert Diaz attempts to rewrite the Riot Act by declaring that its “incitement” clause, and elements criminalizing advocacy of violence without imminent threat of lawlessness, are unconstitutional viz-a-viz Brandenburg v. Ohio (1969). Evidence used to prosecute Miselis and Daley relied on text messages talking about smashing “antifa” in the abstract for example, and this appears to be declared protected speech in Diaz’s view. 

Yet in spite of all this, Diaz affirmed the conviction of the two men due to the fact that they pled to the charges. Lawyers who have reviewed the opinion have told National Justice that this looks like little more than a legal innovation for the Appeals Judges to apply the law in a politically selective fashion. 

Even more unusual is Diaz’s reliance on polemical articles from the New York Times describing what happened at Charlottesville in his ruling. The New York Times was cited three times in the ruling while the state-commissioned legal investigation into the incident, The Heaphy Report, was not consulted once.

Legal scholars National Justice consulted with have said that its rare for judges to cite anything but legal precedents, and when they do, it’s usually neutral work like the Heaphy Report. The appellate court’s reliance on opinion pieces in the New York Times for fact-finding on Charlottesville makes this decision a farce.

Courts are usually informed by politics and instituting protections for the ongoing riots by anarchists and Black Lives Matter members undoubtedly weighed in on the court’s decision. Attorney General Bill Barr and the Trump administration have been relying heavily on the Anti-Riot Act to prosecute violent “antifa” criminals. Diaz’s decision is deliberately designed to enable anarchist criminals who are actually organizing riots while maliciously neglecting to protect the Constitutional right to peaceful advocacy and self-defense of nationalists.

Diaz’s personal racial prejudices were made obvious in his own description of the race riots in the summer of 1967 that killed 85 people and spurred Congress to pass the Riot Act, which he describes as “…being stirred by issues such as racial injustice…” (pg 8). as well as using quotation marks around the term “white advocate.” (pg 5)  Diaz himself is involved in racial advocacy as a founding member of the Mecklenburg County Hispanic Latino Lawyers Bar.  

Lawyers for Miselis and Daley plan to appeal this decision all the way up to the Supreme Court. 

If SCOTUS chooses to hear the case, this will be an interesting development. Liberal justices will be pressured to protect the left-wing rioters yet at the same time have to juggle with the need to punish “racists” for what they think. The Conservatives on the court, who are traditionally seen as allies of free speech, will be pressured by the Republican Party to uphold the dubious law in order to enable the Trump administration to try and restore order in an election year. 

All in all, this decision is a sad day for legal impartiality and the rule of law. 

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