ACLU tweaks lawsuit against NC anti-riot law after recent amendments

Rep. Shelly Willingham, D-Edgecombe, discusses an anti-riot bill while his co-sponsor, House Speaker Tim Moore, R-Cleveland, listens. (Image from

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  • The American Civil Liberties Union of North Carolina has tweaked its lawsuit against the state's new anti-riot law. ACLU's amended suit arrived six days after Gov. Roy Cooper signed a bill that removed a challenged provision.
  • The law no longer establishes a crime for people who "urge" a riot. ACLU had argued that provision was unconstitutional under a 1969 U.S. Supreme Court precedent.
  • ACLU still labels the law's definition of "riot" as "vague and overbroad." The organization also tweaked its request to have all N.C. district attorneys grouped together as a defendant class in the case.

The American Civil Liberties Union of North Carolina has modified its lawsuit against North Carolina’s new anti-riot law. ACLU took action six days after Gov. Roy Cooper signed a bill amending one of the law’s challenged provisions.

“The Act is a sweeping yet amorphous statute, and the scope of speech and conduct it encompasses is difficult to discern,” ACLU lawyers wrote in an amended complaint filed Thursday. “North Carolinians are left to guess whether they will be subject to significant civil or criminal penalties merely for exercising their fundamental free speech, assembly, and petitioning rights.”

The original suit filed in April against House Bill 40 targeted provisions against “urging” a person to engage in a riot. ACLU argued the provisions violated a 1969 U.S. Supreme Court precedent in Brandenburg v. Ohio.

H.B. 40 became law in March.

“Then, the General Assembly got cold feet,” ACLU lawyers argued in the updated complaint.

In June N.C. House committee amendments to Senate Bill 626 removed the prohibitions against “urging” a riot from the anti-riot law. The N.C. House approved the measure, 113-0, and the Senate accepted the House’s changes, 45-0. Cooper signed the change into law on June 30.

“As amended by S.B. 626, the Anti-Riot Act no longer specifically criminalizes mere advocacy of unlawful conduct, rendering moot Plaintiff’s previous challenge to these ‘urging’ provisions,” ACLU lawyers concede.

“Still, S.B. 626 did nothing to address the Anti-Riot Act’s more fundamental problem: its vague and overbroad definition of what constitutes a ‘riot,’” the updated complaint argued. “As amended, the Act still defines a riot as any ‘public disturbance involving an assemblage of three or more people 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 fails to clarify whether, and under what circumstances, an individual who participates in a public demonstration where violence occurs may be held liable under the Act,” ACLU lawyers argued. “It also fails to specify what intent (if any) an individual must act with and what involvement (if any) an individual must have with others who commit acts of violence in order to be punished.”

ACLU labels the definition of “riot” as “vague and overbroad.” The organization argues that even the newly amended law violates the First and 14th Amendments to the U.S. Constitution, along with three sections of the N.C. Constitution’s Declaration of Rights.

“To protect the free speech, assembly, and petitioning rights of itself and its members, Plaintiff files this amended complaint for declaratory and injunctive relief,” ACLU lawyers wrote.

Along with the amended complaint, ACLU has updated its request to certify all N.C. district attorneys as a defendant class in the case. N.C. Attorney General Josh Stein and the DAs in Wake, Durham, and Guilford counties are named defendants.

“Litigating challenges to the Act on a district-by-district basis would create a substantial risk of inconsistent adjudications, imposing different standards of conduct throughout the state,” ACLU lawyers argued. “Absent class certification, North Carolinians’ ability to exercise their fundamental constitutional rights would depend on where they live or happen to engage in speech and protest activities encompassed by the Act.”

“District attorneys could disparately enforce the Act depending on where they were elected,” according to the modified motion. “To facilitate a just, efficient, and consistent resolution of this facial constitutional challenge to the Act, Plaintiff respectfully seeks certification of a Defendant District Attorney Class pursuant to Federal Rules of Civil Procedure. …”

H.B. 40 cleared the N.C. House with a 75-43 vote in February. The Senate approved the measure with a 27-16 margin in March. 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.”

Cooper signed S.B. 626, which included the amendments striking the prohibition against “urging” a riot.