good morning may it please the court when they anti riot act was st passed it was used to try to prosecute vietnam war protester and supporters of the civil rights movement so now fifty years later with only one successful prosecution on the books the government's trying to use it to prosecute white nationalists the reason that the breadth doctrine exists as an exception to traditional standing principles is because it doesn't matter who the government to prosecute if the law is so overbroad that it chills legitimate speech for everybody else any implicit promise from the government are only going to use the law to prosecute really objectionable people who you represent i represent you hear you play guilty you made a motion in judge moon turned it down and then you went in and you made a deal and you stipulated to six pages of fact yes not entirely related to what church king was talking about but this statute appears to be akin to an attempt statute because it doesn't suggest that you have to consummate the substantive offense the riot to be convicted and then it has a definition of riot that suggests that sometimes it requires a number of people to engage word cite or be part of a riot how does that fit within out how frequently charge to the extent that it's been used at all in the last fifty years it has been charged as conspiracy then we see an agreement to try to commit the anti riot act which only rule requires any overt a expression can be swept under the ground the law well all that is correct why isn't the answer then simply just to separate the offending provisions of the statute so i think the severance is only appropriate if congress would have intended whatever is left whatever remains as a stand alone statute and assuming that this court would say well ok we see in here there's a reference to committing acts of violence in furtherance of a riot and i agree and i can agree readily that that's the furthest way for many st amendment protected issues that the statute raises if the court was just going to separate to the briefing that still that's not what congress would have intended because that would just duplicate what's already available to the states and the legislative history that we've cited in the reply brief becomes trouble there's always a federal statute often duplicate efforts of states to prosecute criminal statutes that can't be right because well that's not the issue but they do but in this case the legislative history makes clear that they were trying to add something to the toolkit they weren't just saying we need to prosecute writing local driving behavior because they were doing it in the context of actions that were instigating that came prior to a riot its focus on things in furtherance of our right it does not cover the actual rioting behavior itself and that text is consistent with the legislative history here which shows we're focused on trying to stop riots before they ever started but doesn't that arguably mean you talk about how congress wanted to get not just at the actions but at speech ahead of time and things like that to me that suggests congress had a very broad goal right they wanted to get it all angles of this problem and doesn't that counsel in favor of preserving as much of the statute as we can by severing any any part that we find a constitution but leaving something to suggest that congress wanted to get at this problem any way that it constitutionally could and therefore would still want a pared down version so i think to respond to this one i think that there's also another relevant part of the statute and that is the subsection regional twenty one dollars and one dollar that says that judgment of conviction or acquittal on the merits under the laws of any state shall be a barge any prosecution here under for the same after acts that's an exception to the traditional double jeopardy principles that would apply for separate sovereigns and it again suggests that congress was not trying to duplicate were allow for federal jurisdiction to exist where the state could handle something which is consistent again with the legislative history we've cited everything about the text so it's a focus on stopping right where they started and not just creating a federal assault statute we don't have any legislative history that shows whether it's still i don't see how it would still stop them before they started if you're going to prevent people from traveling to commit an act of violence and taking another overt act with the purpose of an act of violence that's all still ahead of time under the government's proposed these terror construction of the statute they think that you have to at least say you have to actually travel with the intent to commit the court to figure out you could leave it to the district court and back to see whether they necessarily pled guilty to all the elements so that they have not because of the fact of how the indictment was structured with the guilty plea coll severing off the unconstitutional parts of that law the supreme court struck it down that was in april of two thousand and ten and the system worked the way that the constitution and vision by december of that same year congress passed a new law instead of advocating i see my time is expired let me just finish my sentence instead of having the government in this case advocates of this body for why the law should be fixed and rewritten so it's constitutional the department of justice can go to congress and say this is why we need this law this is why it's important to us in this time and then the congress can pass and there are a constitutional version thank you  morning your honour's may it please the court moron born on behalf of the government defendants and it that the anti riot act was constitutionally applied to them to convict them of their premeditated violent conduct nevertheless they're asking this court to take the drastic and sparingly used approach officially invalidating an entire statute based on a concern of some worst case scenario that has never come to pass may never come to pass and regardless pales in comparison to the plainly legitimate sweep of the statute which was designed to both punish and deter those who are genuinely interested in operating the st amendment by turning peaceful assemblies into violent riots as this court knows the principles of constitutional avoidance require this court to exercise patience and validation sparingly and only as a last resort when no other remedies are available here and there are three other remedies and any one of those remedies is sufficient to affirm the convictions in other things if if that's what they did that's how the statute was applied to them and the constitutional avoidance talking can still be a step in and we don't have to go even further showed up plead guilty to the riot act and then we wouldn't have all the stuff about whether the case up in alexandria control how we deal with here it is certainly possible that the defendants here could have pled to either charge the facts supported a does not bear on the question before the court today which is whether or not the defendants can launch a successful facial attack they cannot their conduct cannot in any way shape or form find sanctuary in the st amendment the st amendment  it's more carefully looked at in the context of st amendment issue that's correct your honor and that is why the government agreed to a carve out in the plea agreement to allow the defendants to face the challenge the act because in the doctrine of st amendment law there  little bit more flexibility to launch a facial challenge even when as applied the law was constitutionally applied to these defendants and so we do agree that the defendants have a right to launch a facial challenge it is just that the challenge is meritless under the williams balancing t the supreme court has stated must be bigger isn't forced any potential reach of prohibited speech is clearly outweighed by the legitimate sweep of the statute and as the supreme court has reiterated time and time again in williams and hicks and broderick this speech that is reached that is protected must be both substantial and real in order for this court to even consider facial invalidation and hear it never once in the history of the use of this statute has there ever been a successful as a pilot hasn't had much of a history of the use of the statute that so i don't know that we can attach too much significance to that's true it has been infrequently used but that cuts in both directions because in the over breath analysis a factor the court should consider is whether or not you can of the likelihood of impermissible applications of the statute and as the six circuit and its on mark decision just from a few years ago reviewed with great care one factor the court to consider when making that balancing test is the history of the use of the act and whether or not the government has used the act that has resulted in impermissible applications here there has been absolutely no impermissible use of the act and any perceived possible or imagined impermissible applications of the act are so small and so marginal that they are dwarfed by the permissible applications of the act the heart of this act is it doesn't seem like at least for some of these categories we have to imagine too much it's not a you know the thick circuit had situations where there are two kind of fanciful hypotheticals and you're right they spent a long time talking about this hypotheticals and ultimately decided you know the rest of the statute suggests that those don't make it substantially overbroad but here you know the category of incite a riot on its face might suggest that it's not you know that's not a problem but then when you read the definition definition seems to say mere advocacy of acts of violence or the right the rightness of committing acts of violence and that's it doesn't take any imagination to read that of being speech protected st amendment speech that's an entire that's category a one that's an entire category that's covered so don't take much imagination just to conclude that even that might suggest some something less than incitement something that might be covered by the st amendment right to express oneself curds that organize without necessarily immediately inciting riot so what do we do about that there's no doubt that's the closest call within this statute the language of promote and encourage can have many different applications for example a defendant can promote a riot by throwing the st punch like our defendants did here  throwing them out of cocktail or putting people in a choke hold that is a form of promotion but of course promotion can also be speech and the government has offered a construction of the statue regarding promotion and encouragement that encourages this court to narrowly construe that verb to agree with you that we can do that or perhaps sever the statute to satisfy the requirements of the st amendment wouldn't the defendants be entitled to decide whether or not to repleat based on that new partially invalidate the statute then the courts to conduct a harmless error test and here the defendant signed under oath a five dollars to six dollars page statement of the facts regarding their conduct and no reasonable juror could find that those and mission signed under oath under the penalty of perjury do not satisfy the elements very promptly upon a very quick glance at the syllabus at that case i understand the defendants in that case you have raised both in as applied challenge and a facial challenge and because an as applied challenge would dispense with the need to address a facial challenge the court st addressed the here absolutely would be appropriate because there are four separate sub hair graphs at least one of which has absolutely nothing to do with speech and that's the heartland of the anti riot act it targets acts of violence number three yes eighty three y looking at yes yes the way the statute is drafted there are four care graphs of the statute any one of which amounts to a violation of the act there is no reasonable debate and all prosecut future we will be careful to do so but understanding that at the time there were questions regarding the divisibility of the statute and how it applies to the facts of this case we took the conservative route and charged it is twenty one dollars i want to generally i will also add that of course the fact that this case supported organized promoting curds those are troublesome verbs for me the rest of the section they're in to participate in or carry on a ride that seems clearly beyond bounds but i mean it's those that are troubling the verbs are certainly the most difficult aspects of the statue to wrestle with and that is why the government has advocated for a reading of those firms that require a cause of connection with imminent violence not a broad reading of the term promote or encourage here you can promote in many different ways and the government would agree that if you merely promoted the abstract idea of a profit that would be analogous to promoting or otherwise advocating for violence generally and that would not be prescribe of all but in this instance when you are not only interpretation of the statute can't be correct because congress was trying to get at something more and she cites to a provision in the statute that limits what would otherwise be in a double jeopardy issue by saying that if the defendant is prosecutor under state law the federal statute doesn't apply to congress couldn't possibly believe that the statute either as interpreted by the government or severed was what it intended so what's your response that that's belied by the record the legislative history and the application of statutes by dual sovereigns all the time there are many statutes that covered the same conduct that are prosecuted by both the state and the federal government and there is a discretionary determination as to when a state may bring a charge versus the sovereignty of a sovereign federal government and many factors go into the analysis whether or not the conduct was multi jurisdictional how complex is the crime to the local the local law enforcement resources are they equipped to handle this particular case and in this instance the actual riots took place in two different jurisdictions they were in charlottesville and they were in albemarle county the defendants who are convicted of having incited and participated violently in this riot came from california and much of their planning was done in california so this is a quintessential example of where federal allocation of resources and the use of an important federal statute is appropriate and needed because the local entirely constitutional and in the fifty years since then congress has never thought or probably need to reconsider the act so it's still deems it to be an important federal tool to ask you the same question that i asked your colleague over there about the peculiar  appropriate to on top of the conspiracy charge to what is an attempt to an attempt offense generally requires only a substantial step but here this statute requires the fulfillment of the overt act and it makes it different than a standard attempt offense so if the court's concern is that you could commit a violation of a conspiracy which is the object of which is only an attempted offense that concern can be a even within the actual object of the conspiracy you have to have committed to acts with the riotous intent of the initial interstate act with right as intent and then the fulfillment of an overt act with writers intent so you would not be having an income crime that then criminal d another in co a crime without there being the completion of an overt act i understand that there are certainly ways this court could construe the verbs particularly in eight of the statute to potentially cover protected speech and although we encourage the court to nearly construe it so that it does not i want to emphasize that although the stevens case about the and that they have to have a propelling a cause of action here either lawlessness or violence and i believe the th circuit relies on the standard definition of near and webster for both urge and instigate and we would encourage the court to do the same here are you familiar with the  government of course is a collective government so we have been coordinating with our counterparts in california to ensure a consistent position that we are presenting to both courts and well in that case the court sale to conduct the appropriate balancing task protected speech then let's be reached in order to officially invalidate the statute has to be so substantial and so real in relation to the plainly legitimate sweep that it justifies striking down an entire statute that otherwise has very appropriate and important enforcement tools and respectfully the court in that case did not consider that argument appropriately did not follow the supreme court's and management of that is that perform a preferred course and that in the facial invalidation must be used very sparingly and so we disagree with the court's reasoning in that case here we encourage this court to faithfully follow virginia the hicks and broader versus oklahoma colorado versus hill and the court cases that have conducted this same balancing task and have upheld statutes on a facial challenge as not being over prod and have allowed litigants who are otherwise concerned about the outer reaches of the statute to cure those concerns through as applied litigation that is the i think your honor i want to start with the government mis understanding our intentional misrepresentation of the constitutional void in stockton it's not a license to rewrite a statute to avoid constitutional problems supreme if there's two reasonable competing interpretations of the same language it's not an overall license to avoid constitutional issues it's only if one thing could be interpreted in one of two ways of course then the court should interpret it narrowly to avoid a constitutional issue that's not what we have here we have and the reason that over half challengers are an exception to the principles you're talking about your honor is because of the chilling speech and some of those aspects of the statute were highlighted in your conversations with my my colleague and particular and it is not a reasonable construction of the language encourage promote organize to say that those things all mean essentially instigating violence that's not a dictionary definition of any of those words it's not the common understanding and the fact that the government points to the fact that the later in the statute it says those things include but are not limited to urging or instigating only proves the point that congress was not limiting them exclusively to urging or instigating violence in the williams case which the government rests heavily upon their this room court said ye there's two different literal dictionary definitions of the word or three different dictionary definitions of the words that are at issue then we can look at the broader context to figure out which definition we should apply that's not what we have here we don't have any commonly understood definitions of these words that support the government's reasoning what do you think of participate in carry on and out of those still have sort of double negative definition that were given but it doesn't seem to fit those quite as well because those seem to  indicate participating you know contacts participating in carrying on i certainly agree your honor on their face the verbs are clearer but we do have the exact problem the court has noted that they are defined explicitly to include the mere advocacy of violence and we also have the problem of that is that i guess i'm wondering if that helps narrow them down at least that those terms then wouldn't be substantially overbroad you might still be able to imagine a kind of an outlandish prosecution under those for just speech or just ideas but maybe that that could be challenged as apply if you as a whole those would not be facially oh well i think one additional problem is the fact that you don't have to actually have done one of those acts of the government asks you to also narrowly construed the actual nd element of this offense to say you actually have to have completed the act of participating in our carrying on the right in this particular example you have to take an overt act it just says right of any overt act for that purpose you don't actually have to have the speech to any kind of violence the expression any kind of violence and that's the immediacy is the link that protects that protects against the over breath and i think the other thing i want to point out is the government suggested that it's clear it's harmless error if the court severs no matter what no matter how the court theories is unconstitutional i quote the general verdict of guilty cannot stand unless the record establishes the jury convicted based on the constitutional object of the conspiracy there is not evidence here that the defendants pled guilty to whatever this i magine