How Segregationists Rushed Through The 1968 Rioting Laws DOJ Is Using In 2020
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.
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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.