ACLU challenges new NC law set to redefine, impose stricter punishments for riots

Earlier this month the American Civil Liberties Union of North Carolina filed a lawsuit challenging multiple provisions of House Bill 40, which is set to impose stricter penalties for rioting.

In its complaint, the ACLU named two members who would be affected by the bill due to their continued involvement in Black Lives Matter protests, including Jaelyn Miller, a community lawyering fellow at Emancipate NC.

The suit argues the law will dissuade people from engaging in lawful protest activities, according to a press release. H.B. 40 amended and expanded the N.C. Anti-Riot Act, which, according to the complaint filed by ACLU, violates the First and Fourteenth Amendments to the United States Constitution and three sections of Article I of the North Carolina Constitution.

H.B. 40 — which was sponsored by N.C. House Speaker Tim Moore (R-Cleveland, Rutherford) — defines a riot as a public disturbance of three or more people which through disorderly or violent conduct results in injury or damage. It also said that anyone who urges someone to riot can be charged.

Samuel Davis, an attorney with the ACLU of NC Legal Foundation said H.B. 40 violates the First Amendment for two reasons. 

The first, he said, is that the law is overbroad to the point that it includes lawful protest activities. The second is that speech that urges other people to engage in a riot is protected by the First Amendment, due to a precedent set by the Fourth Circuit finding a nearly identical provision in the federal Anti-Riot Act unconstitutional.

“We think this is pretty clearly an effort to combat or to target dissenting views and to undermine peaceful protest movement and so we brought suit to vindicate the constitutional rights of all North Carolinians and to protect the rights of individuals who engage in peaceful protests,” Davis said.

The bill became law without Gov. Roy Cooper’s signature on March 17 and amendments to the Anti-Riot Act are scheduled to take effect in December. In 2021, Cooper vetoed similar legislation due to First Amendment concerns.

“I acknowledge that changes were made to modify this legislation's effect after my veto of a similar bill last year,” Cooper said in a statement. “Property damage and violence are already illegal and my continuing concerns about the erosion of the First Amendment and the disparate impacts on communities of color will prevent me from signing this legislation.”

Miller said she believes the law is a reaction to the Black Lives Matter movement and events in 2020. 

She said the law will have disproportionate effects on people of color. Even at protests that are predominately white, police will target Black and brown organizers, and H.B. 40 attempts to put a chilling effect on protests by making people afraid of arrest if they exercise their First Amendment rights, she said.

“If you chill the movement and you chill the protest, then you chill the benefits to the Black and brown community,” she said.

Davis said the law will have disproportionate effects on communities of color because vague and over-broad laws give prosecutors and police major discretion as to how they are enforced, leading to discriminatory enforcement.

“I don’t think it's an accident that legislators first sought to enhance and expand the Anti-Riot Act in the first legislative session after the Black Lives Matter movement,” Davis said.

Miller said Republican lawmakers are afraid of the results of the Black Lives Matter movements including efforts to defund the police and the rising interest of young people in politics. She said Democrats who passed the law are out of touch with their constituents and compared them to N.C. Rep. Tricia Cotham (R-Mecklenburg), who recently switched parties.

Davis said North Carolina is not alone in using the Anti-Riot Act in this way. Over the past few years, several similar laws have been passed in response to the Black Lives Matter movement across the country and have been enjoined by federal courts.

“There's a national coordinated campaign to start trying to slow down these protests because they are having such a profound effect on our country — nationally on the conversations we're having around policing and police misconduct,” Miller said.

Instead of listening to the movement, Republicans want to shut it down, she said. 

Davis said the ACLU has not yet heard back from opposing counsel and is waiting for them to indicate who will be representing the parties and begin the preliminary stages of litigation.

@msingleton42

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