ACLU files federal suit against new NC anti-riot law

The YMCA in downtown Raleigh, boarded up after rioters broke windows and looted the property. (CJ photo by Rick Henderson

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  • The American Civil Liberties Union is going to federal court to challenge North Carolina's new anti-riot law. ACLU claims "multiple provisions" of the law are "facially unconstitutional."
  • The law is st to take effect Dec. 1. Gov. Roy Cooper decided not to veto the measure, which cleared both the state House and Senate with veto-proof majorities.

The American Civil Liberties Union is going to federal court to try to block North Carolina’s new anti-riot law. The measure is scheduled to take effect Dec. 1, after Gov. Roy Cooper decided not to use his veto stamp against the law.

The suit filed Monday argues that “multiple provisions” of the new law are “facially unconstitutional.” ACLU of North Carolina seeks an injunction blocking challenged portions of the new law.

“Amended and expanded in March 2023 in response to recent mass protests against police
killings of Black people, the Anti-Riot Act impermissibly criminalizes North Carolinians who exercise their fundamental free speech, assembly, and petitioning rights,” ACLU lawyers wrote. “The Act violates the First and Fourteenth Amendments to the United States Constitution and article I, sections 12, 14, and 19 of the North Carolina Constitution.”

ACLU’s complaint cites a portion of the law creating criminal liability for a person who “urges another to engage in a riot.” “All of these ‘urging provisions’ target mere advocacy of unlawful conduct in violation of the First Amendment as interpreted in Brandenburg v. Ohio. For this precise reason, the Fourth Circuit held a nearly identical provision of the federal Anti-Riot Act facially unconstitutional.”

“Further, the entire Anti-Riot Act rests on an overbroad definition of what constitutes a ‘riot,’” according to the complaint. “Under the Act, a riot is defined as an “assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.’”

“This definition means that a participant in a larger ‘assemblage’ where violence or property damage occurs need not have personally incited, engaged in, threatened, or aided and abetted violence or property damage to be held criminally and civilly liable,” ACLU lawyers argued. “It criminalizes mere participation in a demonstration — as well as other activities that North Carolinians have a fundamental constitutional right to engage in — where some members of the group threaten or cause property damage or violence. North Carolinians could be arrested and prosecuted under the Act even if their own actions were entirely peaceful.”

The suit names N.C. Attorney General Josh Stein and the district attorneys of Durham, Guilford, and Wake counties as defendants. Each is a Democrat. The suit does not name Republican legislators who led the votes to approve the anti-riot law.

The law, also known as House Bill 40, cleared the N.C. House with a 75-43 vote and the Senate with a 27-16 margin. Six House Democrats and one Senate Democrat joined Republican majorities to support the measure.

Both margins surpassed the three-fifths majority required to override a gubernatorial veto. Cooper announced on March 17 that he would not use his veto stamp.

“I acknowledge that changes were made to modify this legislation’s effect after my veto of a similar bill last year,” he said. “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.”

There is no timetable for a decision on the ACLU’s suit.