WDC Testimony Opposing ‘Riot’ Bill

To the Assembly Committee on Judiciary

September 21, 2017

Testimony in opposition to Assembly Bill 395 which makes it a felony to participate in a ‘riot’ defined as any gathering of three or more people where it “is reasonable to believe that the assembly will cause injury to persons or damage to property unless it is immediately dispersed.”

Chairman Ott and other distinguished members of the Committee, it’s a pleasure to be with you again today.

I’m Matt Rothschild, the executive director of the Wisconsin Democracy Campaign, a nonprofit here in Madison that’s been around now for 22 years, advocating for clean and open government and for a fully functioning democracy.

Crucial to our democracy is the right to freedom of speech and assembly. It is enshrined in the First Amendment of the U.S. Constitution, and it is enshrined in our Wisconsin Constitution as well. Article I, Section 3, of our state constitution says, “No laws shall be passed to restrain or abridge the liberty of speech or of the press.” Article I, Section 4, says, “The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.”

This bill would restrain and abridge our free speech and assembly rights, and it would do so in a way that is expressly prohibited by the U.S. Supreme Court.

Toy Police Subduing 'Rioter'

This bill would make it a felony to “riot,” and it defines “riot” in a peculiar and unconstitutional way.

On the peculiar 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? The U.S. Supreme Court has already weighed in on these questions. It has ruled on several occasions that vague threats of violence are protected under the First Amendment. In the landmark U.S. Supreme Court case Brandenburg v. Ohio in 1969, the court ruled in defense of First Amendment rights of a Klansman who spoke at a rally and urged vengeance, in a vague way, upon Jews and African Americans. The Court ruled that such speech was protected. It said the Klansman was prosecuted for “mere advocacy not distinguished from incitement to imminent lawless action,” and that he was also wrongly prosecuted for “assembly with others merely to advocate the described type of action.”

This bill has the same infirmities as the overturned Ohio law in the Brandenburg case. 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. It also would criminalize “assembly with others” who are merely advocating a vague action.

For instance, one member out of a group of 300 could say, “If this injustice goes on much longer, we should go break some windows.” Under the bill before you, the speaker—and indeed the other 299 people in the assembled group—could be guilty of a Class 1 Felony and face three and a half years in jail and be fined $10,000 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 isn’t “imminent.”

Nor would this bill’s prohibition of threats pass muster under other U.S. Supreme Court rulings, such as the 1969 case, Watts v. United States. In the Watts case, 19-year-old Robert Watts was convicted in the lower courts of threatening the President of the United States. Watts was speaking at a rally at the Washington Monument, and was vowing to resist the draft, saying: “I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.” And Watts even made a gesture about aiming a rifle. But the U.S. Supreme Court overturned his conviction, saying it wasn’t a direct threat but only “a kind of crude offensive method of stating a political opposition to the President.” As Justice William O. Douglas wrote pointedly in his concurring opinion in Watts, “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.”

That is what this bill is all about: suppressing speech, and suppressing assembly, as part of a police measure.

And there is evidence that this bill is designed to suppress speech and suppress assembly of a specific content, which makes it even more objectionable on constitutional grounds.

It seems designed to infringe upon speech and assembly that objects to police brutality. 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.” Let’s be clear here: Most riots over the last six decades in America – and recently -- have occurred in response to police brutality. The authors of this bill understand that. So this is content-based suppression of speech and thereby unconstitutional in this regard, as well.

This bill would group together those who are nonviolent with those who are violent.

It would countenance guilt by association.

And it’s totally 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 criminal statutes that could be used to round up people who are nonviolently protesting police violence.

And by the way, if you want to reduce riots, try reducing police brutality.

I urge you to vote no on this unnecessary and unconstitutional bill.

I thank you for considering my views, and I welcome any questions you might have.