Stein’s opposition spells bad news for ACLU anti-riot lawsuit

North Carolina’s attorney general, Democrat Josh Stein, is no fan of the state’s Republican legislative leaders.

As he ramps up his campaign for governor in 2024, Stein criticizes GOP lawmakers regularly. He blasts them on education funding, election integrity, and Medicaid expansion. He’s even refused to defend the state’s new law restricting abortions after 12 weeks of pregnancy.

That’s why it’s newsworthy that Stein stands behind the Republican-led General Assembly’s new anti-riot law.

The American Civil Liberties Union is pursuing a federal suit against the law. Yet opposition from the well-known left-of-center organization hasn’t deterred the Democratic attorney general. His state Justice Department lawyers have pursued a serious defense. Republican lawmakers have not felt compelled to jump into the case.

That likely means bad news for the ACLU.

The case took an interesting twist this summer. On the last day of June, Gov. Roy Cooper, also a Democrat, signed a bill tweaking the law. Approved unanimously in both state legislative chambers, Senate Bill 626 removed a provision prohibiting one person from “urging” another person to engage in a riot. Critics cited a conflict with a 1969 US Supreme Court precedent in Brandenburg v. Ohio.

An amended lawsuit filed six days later noted the change. But ACLU lawyers still argued that the law’s definition of “riot” was vague and overbroad. They complained peaceful protesters could be swept up in a law enforcement crackdown when protests turn violent.

Stein’s legal team picked apart that argument in recent US District Court filings.

“For 54 years, North Carolina has defined ‘riot’ in its Anti-Riot Act … as ‘a public disturbance involving 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,’” wrote Justice Department lawyers. “All those words amount to a simple meaning: A riot is a type of public disturbance — specifically, a violent one involving three or more persons.

“Consistent with that meaning, the North Carolina Supreme Court, North Carolina Court of Appeals, and this Court have all rejected facial constitutional challenges to the Act after concluding that a person who has not engaged in or threatened violent conduct has not engaged in a riot,” Stein’s lawyers added.

The ACLU suit ignores court precedent.

“It alleges that the law’s definition of ‘riot’ allows the State to prosecute peaceful protestors simply because other people at the protest engaged in unlawful violence,” the Justice Department continued. “And, ACLU-NC alleges, if that reading is correct, the Act is unconstitutionally vague and overbroad. Moreover, ACLU-NC alleges, the risk of prosecution under the Act injures the organization and its members.”

Stein’s team labels ACLU arguments “puzzling.” “Although the organization now argues that the Act impairs its mission and infringes its members’ constitutional rights, the statute has been on the books for more than fifty years, and ACLU-NC has before never seen fit to challenge it,” the attorney general’s lawyers wrote. “But even setting this staleness concern aside, ACLU-NC’s concern is misplaced.”

Justice Department lawyers pointed to the state Supreme Court’s “authoritative construction” of the term “riot” in a 1975 case titled State v. Brooks. “This construction poses two fatal problems for ACLU-NC.”

First, the accepted definition of “riot” threatens ACLU’s legal standing to bring a lawsuit. “Since ACLU-NC seeks only to engage in peaceful protests, the risk of the Act injuring ACLU-NC or its members is too remote to confer standing,” Stein’s lawyers argued.

Even if the suit survives the standing issue, ACLU “has failed to state a claim,” Stein’s lawyers wrote. “Properly construed, the Act’s definition of ‘riot’ requires an act or threat of violence. ‘The First Amendment does not protect violence[,]’ so the definition touches only conduct that falls outside the First Amendment’s protections.”

The word “violence” also has a “well-settled” meaning. It eliminates any concerns about the law being overly vague.

For Stein’s Justice Department, the nearly 50-year-old Brooks case from North Carolina’s highest court “binds” federal judges. The US District Court cannot accept the ACLU’s critique of the word “riot.”  

“[B]ecause ACLU-NC lacks standing and can allege no set of facts that would entitle it to relief, its Amended Complaint should be dismissed with prejudice,” Stein’s lawyers wrote. “Alternatively, this Court should construe the Anti-Riot Act to avoid any constitutional concerns.”

A federal judge could take a different approach. But the Democrat Stein’s vigorous defense of the Republican-led General Assembly’s handiwork is likely to help efforts to limit violence in North Carolina’s streets.

Mitch Kokai is senior political analyst for the John Locke Foundation.