[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13489

____________________

DREAM DEFENDERS, 

BLACK COLLECTIVE INC., 

CHAINLESS CHANGE INC., 

BLACK LIVES MATTER ALLIANCE BROWARD, 

FLORIDA STATE CONFERENCE OF THE NAACP, et al.,

Plaintiffs-Appellees,

versus

GOVERNOR OF THE STATE OF FLORIDA, 

SHERIFF OF JACKSONVILLE/DUVAL COUNTY FLORIDA,

Defendants-Appellants,

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 1 of 29
2 Opinion of the Court 21-13489

ATTORNEY GENERAL, STATE OF FLORIDA, et al.,

Defendants.

____________________

Appeals from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:21-cv-00191-MW-MAF

____________________

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

JILL PRYOR, Circuit Judge:

In the summer of 2020, people took to the streets across the 

country to protest the murder of George Floyd by a police officer 

and other police violence against persons of color. That fall, Florida’s Governor, Ron DeSantis, characterized these protests as “disorder and tumult” and promised to have “a ton of bricks rain down 

on” those who engaged in violent and disorderly conduct. Press 

Conference on Law Enforcement Legislation, The Florida Channel 

(Sept. 21, 2020), at 1:20–1:24, 7:17–7:43 https://thefloridachannel.org/videos/9-21-20-press-conference-on-law-enforcement-legislation. The following spring, the Florida Legislature passed the 

Combatting Violence, Disorder, and Looting, and Law Enforcement Protection Act, also known as House Bill 1 (“HB 1”), 2021 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 2 of 29
21-13489 Opinion of the Court 3

Fla. Leg. Sess. Laws Serv. ch. 2021-6. HB 1 redefined the crime of 

“riot.”

After HB 1’s passage, Dream Defenders and other organizations that lead protests for racial justice challenged the new definition as unconstitutional, alleging that it infringed their members’ 

First Amendment right to engage in peaceful protest. The district 

court agreed with the plaintiffs that the new statutory definition 

was vague and overbroad and therefore likely to chill or deter their

members’ exercise of their First Amendment rights. The court entered a preliminary injunction that prevented the defendants, Governor DeSantis and three sheriffs, from taking any steps to enforce 

the law using the new definition.

Governor DeSantis and Mike Williams, the Sheriff of Jacksonville, challenge the preliminary injunction on appeal. Whether 

Florida’s riot statute is unconstitutional turns on the proper interpretation of the new definition of “riot” under Florida law—a question the Florida Supreme Court, the final arbiter of State law, has

not yet addressed. We think it appropriate to give the Florida Supreme Court the opportunity to provide an authoritative interpretation of the state law before we decide whether the law is constitutional. We therefore certify a question regarding the meaning of 

“riot” in the new state law to the Florida Supreme Court.

I. 

It has long been a felony under Florida law to engage in a 

riot. See Fla. Stat. § 870.01(2) (2020) (“[A person] guilty of a riot, or 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 3 of 29
4 Opinion of the Court 21-13489

of inciting or encouraging a riot, shall be guilty of a felony of the 

third degree . . . .”). Before HB 1, Florida statutes did not define the 

term “riot.” See State v. Beasley, 317 So. 2d 750, 752 (Fla. 1975). In 

the absence of a statutory definition, the Florida Supreme Court 

applied the common-law definition of “riot.” Id. The common law 

defined a riot as:

a tumultuous disturbance of the peace by three or 

more persons, assembled and acting with a common 

intent, either in executing a lawful private enterprise 

in a violent and turbulent manner, to the terror of the 

people, or in executing an unlawful enterprise in a violent and turbulent manner.

Id. Under this definition, to convict a person of the criminal offense 

of riot, the State had to prove beyond a reasonable doubt that the 

defendant was one of the three or more persons acting “with a 

common intent to mutually assist each other in a violent manner 

to the terror of the people and a breach of the peace.” Id. at 753. 

This “restrictive limitation[]” on the definition, the Florida Supreme Court said, ensured its constitutionality. Id.

With HB 1, the Florida Legislature amended the Florida 

statute prohibiting riots, § 870.01(2), to add a definition of “riot.”

See HB 1 § 15. As amended, Florida law now provides: 

A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 4 of 29
21-13489 Opinion of the Court 5

common intent to assist each other in violent and disorderly conduct, resulting in:

(a) Injury to another person;

(b) Damage to property; or

(c) Imminent danger of injury to another person 

or damage to property.

Fla. Stat. § 870.01(2).1 With HB 1, the Florida Legislature also 

amended § 870.01 to specify that the statute “does not prohibit constitutionally protected activity such as a peaceful protest.” Id.

§ 870.01(7); HB 1 § 15. Also relevant here, it added a requirement 

that any person arrested for rioting “shall be held in custody” until 

his bail hearing. Fla. Stat. § 870.01(6); see HB 1 § 15. 

The plaintiffs in this case are organizations that regularly 

stage peaceful protests, encouraging their members to come together to demonstrate their opposition to police violence and their 

support for racial justice. Some of the plaintiffs’ protests are confrontational—for example, the protestors block roads and highways—but the plaintiffs strive to keep the protests free from violence. Some plaintiffs designate members to attend protests as 

“peacekeepers” tasked with keeping people with opposing views

1 In this opinion, when we say “§ 870.01(2),” we refer to the version of the 

statute as amended by HB 1.

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 5 of 29
6 Opinion of the Court 21-13489

physically separated from one another. Doc. 137 at 19.2 They began to use peacekeepers after several incidents in which “individuals attempted to drive their vehicles through groups of protestors” 

and another in which an individual “pulled a gun on protestors.” 

Id. at 10. Peacekeepers have chased away counter-protestors in efforts to stop the violence. 

The plaintiffs sued Governor DeSantis, Sheriff Williams, 

Leon County Sheriff Walt McNeil, and Broward County Sheriff 

Gregory Tony, all in their official capacities, challenging

§ 870.01(2). Shortly after filing the complaint, the plaintiffs filed a 

motion for a preliminary injunction to block Governor DeSantis 

and the sheriffs from enforcing § 870.01(2)’s new definition of riot.

The plaintiffs argued that they were entitled to a preliminary injunction because they had a substantial likelihood of success on 

their claims that, as amended, the statute prohibiting rioting was 

unconstitutional because it was void for vagueness and overly 

broad.3

2 “Doc.” numbers refer to the district court’s docket entries.

3 In the complaint, the plaintiffs included claims against another defendant and 

raised other constitutional challenges to HB 1, none of which are at issue in 

this appeal. The complaint named Florida Attorney General Ashley Moody as 

an additional defendant. The district court dismissed the claims against the 

Attorney General, concluding that the plaintiffs lacked standing because their 

injuries were not traceable to her, and the plaintiffs have not appealed the dismissal. And even though the plaintiffs raised other constitutional challenges to 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 6 of 29
21-13489 Opinion of the Court 7

After a hearing, the district court issued a 90-page order and 

entered a preliminary injunction. In the order, the court began by 

addressing standing. It explained that the plaintiffs were suffering

injury because their evidence, which the district court found credible, showed that their members’ speech was being chilled. The

court found that the plaintiffs’ members had engaged in and continued to engage in “self-censoring for fear of the challenged statute’s enforcement against them.” Id. at 8. Given the defendants’

authority under Florida law to suppress riots and arrest rioters, the 

court concluded that the plaintiffs’ injuries were fairly traceable to 

Governor DeSantis and the sheriffs and could be redressed by an 

injunction barring Governor DeSantis and the sheriffs from enforcing the challenged law. 

The district court then addressed why it believed that the

plaintiffs were entitled to a preliminary injunction. The court determined that the plaintiffs demonstrated a substantial likelihood 

that they would succeed on their void-for-vagueness and overbreadth claims. To evaluate these claims, the court explained, it 

had to interpret the scope of § 870.01(2)’s prohibition on riots. After 

parsing the statute, the court concluded that it “raise[d] grave constitutional concerns.” Id. at 57.

HB 1, their motion for a preliminary injunction requested only that the court 

enjoin enforcement of § 870.01(2) based on their void-for-vagueness and overbreadth claims. Because the plaintiffs’ other claims are not at issue in this appeal, we do not address them.

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 7 of 29
8 Opinion of the Court 21-13489

Addressing the plaintiffs’ vagueness challenge, the district 

court concluded that § 870.01(2) was open to “multiple reasonable 

constructions,” and thus “an individual of ordinary intelligence 

could read the [statute] and not be sure of its real-world consequence.” Id. at 71, 75. The court stated that a person “would not 

know if this law meant that she had to merely avoid sharing a common intent to assist two others in violent and disorderly conduct” 

or if she could also violate the statute by being present at “any public event where such violent and disorderly conduct could occur.” 

Id. at 71. Given the lack of clarity that the court perceived, it concluded that the statute forced “would-be protestors” to choose “between declining to jointly express their views with others or risk 

being arrested and spending time behind bars.” Id. The court further concluded that “the vagary of [§ 870.01(2)] empower[ed] law 

enforcement officers to exercise their authority in arbitrary and discriminatory ways” because “the statute [left] unclear who must 

share what intent to be arrested.” Id. at 71–72. For these reasons, it 

determined that the plaintiffs were substantially likely to prevail on 

their vagueness challenge.

The district court also determined that the plaintiffs were 

substantially likely to succeed on their overbreadth claim. Section 870.01(2), the court concluded, “criminalize[d] a large amount 

of unprotected activity,” as well as “vast swaths of core First 

Amendment speech.” Id. at 76. The court thought that the statute 

could plausibly be read to criminalize activities protected under the 

First Amendment including “continuing to protest after violence 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 8 of 29
21-13489 Opinion of the Court 9

occurs, even if the protestor[] [is] not involved in, and d[oes] not 

support, the violence,” as well as “remain[ing] at the scene of a protest turned violent to film the police reaction.” Id. Because the 

court concluded that the statute “punishe[d] a substantial amount 

of protected free speech, judged in relation to the statute’s plainly 

legitimate sweep,” it held that the statute was unconstitutionally 

overbroad. Id. at 74, 78. 

After concluding that the plaintiffs also faced irreparable injury and that the public interest would be served by an injunction, 

the court enjoined Governor DeSantis and the sheriffs “from enforcing the new definition of ‘riot.’” Id. at 87–88. Governor DeSantis and Sheriff Williams appealed.

II. 

We begin by reviewing the plaintiffs’ standing to maintain 

their claims. Under Article III of the Constitution, federal courts 

may exercise jurisdiction only over “Cases” and “Controversies.” 

U.S. Const. art. III, § 2. “To satisfy the case-or-controversy requirement, a plaintiff must have standing to sue.” Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1083 (11th Cir. 2019). To have 

standing, “a plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly 

traceable to the challenged action of the defendant and likely to be 

redressed by a favorable judicial decision.” Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1303–04 (11th Cir. 2017) (en banc) (internal quotation marks omitted). “We review standing 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 9 of 29
10 Opinion of the Court 21-13489

determinations de novo.” BBX Cap. v. Fed. Deposit Ins. Corp., 

956 F.3d 1304, 1312 (11th Cir. 2020).

As organizations, the plaintiffs can establish associational 

standing to enforce the rights of their members when “(a) [their] 

members would otherwise have standing to sue in their own right; 

(b) the interests [the lawsuit] seeks to protect are germane to the 

organization’s purpose; and (c) neither the claim asserted nor the 

relief requested requires the participation of individual members in 

the lawsuit.” Greater Birmingham Ministries v. Sec’y of State for 

Ala., 992 F.3d 1299, 1316 (11th Cir. 2021) (internal quotation marks 

omitted). In this case, only the first requirement is seriously in dispute, so we focus on whether the plaintiffs established that their 

members would otherwise have standing in their own right.4 The 

answer, as we explain below, is yes.

A. 

The plaintiffs in this case challenge a law that has not yet 

been enforced against their members. A threat of future injury is 

sufficient to establish standing when “the threatened injury is certainly impending or there is a substantial risk that the harm will 

4 The plaintiffs easily satisfy the other two prongs of the associational standing

inquiry. This lawsuit seeks to protect First Amendment rights to free speech 

and free assembly, rights that are essential—not merely germane—to the organizations’ purposes of securing change through protests and civic engagement. See Greater Birmingham Ministries, 992 F.3d at 1316. And the constitutional claims asserted and injunctive relief sought assuredly did not require the 

participation of individual members in this lawsuit. See id.

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 10 of 29
21-13489 Opinion of the Court 11

occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) 

(internal quotation marks omitted). “When an individual is subject 

to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.” Id.

We apply a two-part test to determine whether an injury is 

sufficiently imminent to permit pre-enforcement review. See Wollschlaeger, 848 F.3d at 1304. First, the plaintiff must have “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute.” Driehaus, 573 U.S. 

at 159 (internal quotation marks omitted). Second, there must “exist[] a credible threat of prosecution.” Id. (internal quotation marks 

omitted). We have inferred the existence of a credible threat of 

prosecution when a plaintiff challenged the law soon after it was 

enacted and the state “vigorously defended” the law in court. Wollschlaeger, 848 F.3d at 1305.

Applying this two-part test, we conclude that the plaintiffs’ 

members face an injury that is sufficiently imminent for standing 

purposes. First, the plaintiffs’ members wish to exercise their right 

to protest, speech that is affected with a First Amendment interest, 

and believe that § 870.01(2) prevents them from doing so. The district court credited the plaintiffs’ evidence showing that their members continue to self-censor by abstaining from protests for fear of 

being arrested and charged with rioting. For example, Dream Defenders planned to hold multiple events around the State of Florida 

on the anniversary of George Floyd’s murder. But it canceled its 

plans because of its members’ fears of being arrested for violating 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 11 of 29
12 Opinion of the Court 21-13489

§ 870.01(2). Because the district court’s findings established that the 

plaintiffs and their members intended to “engage in a course of conduct arguably affected with a constitutional interest, but proscribed 

by” the challenged law, they satisfied the first part of the test. See 

Driehaus, 573 U.S. at 159; see also Wilson v. State Bar of Ga., 

132 F.3d 1422, 1428 (11th Cir. 1998) (describing self-censorship as 

an injury that occurs “when the plaintiff is chilled from exercising 

her right to free expression or forgoes expression in order to avoid 

enforcement consequences” (internal quotation marks omitted)).

The plaintiffs also satisfied the second prong of the test. 

They brought this lawsuit shortly after HB 1 was enacted. From 

this timing, along with Governor DeSantis’s and Sheriff Williams’s 

vigorous defense of the statute, we infer “an intent to enforce the 

challenged provisions.” Wollschlaeger, 848 F.3d at 1305 (alteration 

adopted) (internal quotation marks omitted). We thus conclude 

that the plaintiffs’ members’ injuries in this case were sufficiently 

imminent to permit pre-enforcement review. 

Governor DeSantis nevertheless argues that the injury requirement is not satisfied because the plaintiffs’ members face no 

credible threat of prosecution. To support his position, he relies on 

the Supreme Court’s decision in Clapper v. Amnesty International

USA, 568 U.S. 398 (2013). 

In Clapper, several plaintiffs brought a lawsuit challenging a 

provision of the Foreign Intelligence Surveillance Act (“FISA”) that 

allowed surveillance of individuals outside the United States. Id. at 

401. The plaintiffs argued that they satisfied the injury requirement 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 12 of 29
21-13489 Opinion of the Court 13

because they intended to make phone calls with foreign correspondents and feared government agents would surveil their foreign correspondents and listen to their calls under the surveillance 

program. Id. The Supreme Court rejected their argument and concluded they lacked standing. The Court explained that government 

agents would listen to the plaintiffs’ phone calls—and thereby injure them—only if five conditions were met. Those conditions 

were: (1) among their many possible foreign targets, agents would 

try to listen to the plaintiffs’ foreign correspondents’ calls; 

(2) agents would try to listen to those correspondents’ calls under 

the authority of the FISA rather than by some other means; (3) the 

Article III judges on the Foreign Intelligence Surveillance Court 

would conclude that the government’s surveillance procedures satisfied FISA’s safeguards and were consistent with the Fourth 

Amendment; (4) the agents would successfully implement the 

technology enabling them to listen to the phone calls; and (5) the 

specific plaintiffs would be on the other line when the agents listened to calls. Id. at 410. Given this “highly attenuated chain of possibilities,” the Court rejected as “speculative” the plaintiffs’ theory 

that they faced imminent injury. Id. at 410–11.

The Governor’s invocation of Clapper does not persuade us 

that the plaintiffs’ fears of prosecution in this case are speculative. 

As the district court’s findings of factreflect, the plaintiffs’ members 

have engaged and continue to engage in self-censorship in response 

to the prospect of being charged with the crime of “riot” under 

§ 870.01(2). Unlike the plaintiffs in Clapper, the plaintiffs’ members’

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 13 of 29
14 Opinion of the Court 21-13489

fears do not depend upon on speculation that, in enforcing the law 

against third parties, the government would end up harming the 

members. Instead, the members fear that the government will enforce the riot statute directly against them by arresting them for 

engaging in a riot if they engage in peaceful protesting activities to 

advocate for racial justice. And here there is no sequence of uncertain contingencies involving multiple independent actors (like the 

government agents and Article III judges in Clapper) that must occur before the plaintiffs’ members would experience this harm. Because the plaintiffs have established a “substantial risk” of future 

harm, we conclude that they satisfied the injury-in-fact requirement. Driehaus, 573 U.S. at 158.

B. 

Having assured ourselves that the plaintiffs’ members’ injuries suffice for standing purposes, we inquire whether those injuries are fairly traceable to Governor DeSantis and Sheriff Williams

and can be redressed by the district court’s preliminary injunction. 

To establish traceability and redressability in a lawsuit seeking to 

enjoin a government official from enforcing the law, a plaintiff

must show “that the official has the authority to enforce the particular provision [being] challenged, such that [the] injunction prohibiting enforcement would be effectual.” Support Working Animals, 

Inc. v. Governor of Fla., 8 F.4th 1198, 1201 (11th Cir. 2021). 

Both Governor DeSantis and Sheriff Williams have legal authority to enforce the riot statute, and the preliminary injunction

has effectively prohibited them from enforcing it. Under Florida 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 14 of 29
21-13489 Opinion of the Court 15

law, the governor has the authority to “[o]rder any sheriff . . . to 

exercise fully the powers granted . . . [to] suppress tumults, riots, 

and unlawful assemblies in [his] count[y] with force and strong 

hand when necessary.” Fla. Stat. § 14.022(3)(b). And Florida law authorizes sheriffs to “[s]uppress tumults, riots, and unlawful assemblies in their counties with force and strong hand when necessary.”

Id. § 30.15. Given this clear statutory authority, the traceability and 

redressability requirements are satisfied.5 See Support Working 

Animals, 8 F.4th at 1201. We therefore conclude that the plaintiffs 

have standing to bring this challenge.

III. 

We now turn to whether the district court abused its discretion when it entered the preliminary injunction. See Gonzalez v. 

5 Governor DeSantis also argues that he is not the proper party under Ex parte 

Young, 209 U.S. 123 (1908). The Eleventh Amendment ordinarily bars a state’s 

citizens from suing the state in federal court. See Summit Med. Assocs., P.C. 

v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999). It also “prohibits suits against 

state officials where the state is, in fact, the real party in interest” such as when 

“a lawsuit seeks to order [a] state officer to pay funds directly from the state 

treasury for the wrongful acts of the state.” Id. But the Supreme Court in Ex 

parte Young, 209 U.S. 123 (1908), recognized an exception to this rule permitting a suit in federal court against a state officer when the suit seeks “prospective equitable relief to end continuing violations of federal law.” Summit Med.

Assocs., 180 F.3d at 1336 (emphasis omitted). Ex parte Young requires that the 

state officer have “authority to enforce the challenged statute.” Id. at 1342. 

We agree with the district court that, based on Ex parte Young, Governor DeSantis is a proper party because he has statutory authority to enforce 

§ 870.01(2)’s prohibition on riots. 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 15 of 29
16 Opinion of the Court 21-13489

Governor of Ga., 978 F.3d 1266, 1270 (11th Cir. 2020) (“We review 

the grant of a preliminary injunction for abuse of discretion, reviewing any underlying legal conclusions de novo and any findings 

of fact for clear error.”). A district court may grant a preliminary 

injunction only if the moving party shows: (1) “it has a substantial 

likelihood of success on the merits;” (2) “it will suffer an irreparable 

injury unless the injunction is granted;” (3) “the harm from the 

threatened injury outweighs the harm the injunction would cause 

the opposing party;” and (4) “the injunction would not be adverse 

to the public interest.” Id. at 1271 (footnote omitted). The first factor “is generally the most important.” Id. at 1271 n.12. (internal 

quotation marks omitted).

Governor DeSantis and Sheriff Williams argue that the district court erred in concluding that the plaintiffs are likely to succeed on their claims that § 870.01(2) is unconstitutional because it 

is void for vagueness and overly broad. But we defer deciding 

whether the plaintiffs have a likelihood of success on the merits of 

their constitutional claims and instead exercise our discretion to 

first certify a question about the meaning of the statute to the Florida Supreme Court.

To address why certification is warranted here, we begin by 

explaining how the plaintiffs’ constitutional claims turn on a novel 

issue of Florida state law, the meaning of “riot” under § 870.01(2). 

In these circumstances, certification is appropriate to avoid the risk 

of friction that may arise when a federal court endeavors to construe a novel state law in the first instance. See Arizonans for Off. 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 16 of 29
21-13489 Opinion of the Court 17

Eng. v. Arizona, 520 U.S. 43, 75 (1997). Indeed, certification affords 

the State’s highest court an opportunity to interpret § 870.01(2) in 

a way that may obviate the plaintiffs’ constitutional concerns.

Resolution of the plaintiffs’ vagueness and overbreadth 

claims requires interpretation of § 870.01(2). Under due-process 

principles, a law is “void for vagueness if its prohibitions are not 

clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 

(1972). “Unconstitutionally vague laws fail to provide ‘fair warning’ 

of what the law requires, and they encourage ‘arbitrary and discriminatory enforcement’ by giving government officials the sole 

ability to interpret the scope of the law.” Keister v. Bell, 29 F.4th 

1239, 1258 (11th Cir. 2022) (quoting Grayned, 408 U.S. at 108–09). 

“The First Amendment context amplifies these concerns because 

an unconstitutionally vague law can chill expressive conduct by 

causing citizens to ‘steer far wider of the unlawful zone’ to avoid 

the law’s unclear boundaries.” Id. at 1258–59 (quoting Grayned, 

408 U.S. at 109); see also Smith v. Goguen, 415 U.S. 566, 573 (1974)

(explaining that when “a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression 

sheltered by the First Amendment, the doctrine demands a greater 

degree of specificity than in other contexts”).

The parties’ arguments illustrate how the plaintiffs’ vagueness claim depends on the interpretation of § 870.01(2). The plaintiffs argue that § 870.01(2) “fails to define what it means to ‘participate’ in a violent public disturbance” or to define what the term 

“violent public protest” encompasses, leaving it “hopelessly 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 17 of 29
18 Opinion of the Court 21-13489

unclear whether the statute criminalizes continuing to protest 

peacefully while others commit violence.” Appellees’ Br. at 20, 42–

43 (internal quotation marks omitted). As a result, the plaintiffs say,

the statute is unconstitutionally vague. In contrast, Governor DeSantis and Sheriff Williams argue that the statute is not vague because it has a “readily ascertainable meaning,” and “[u]nder the 

statute, a person who is peacefully protesting does not commit a 

riot.” DeSantis Appellant’s Br. at 8; see also Williams Appellant’s 

Br. at 19–20 (arguing that under the statute “[a] peaceful protestor 

who continues to protest peacefully amid the chaos created by others” does not commit a riot). 

The plaintiffs’ overbreadth claim rests on a First Amendment doctrine designed “to prevent the chilling of protected expression.” Massachusetts v. Oakes, 491 U.S. 576, 584 (1989). A statute is overly broad if it “punishes a substantial amount of protected 

free speech, judged in relation to the statute’s plainly legitimate 

sweep.” Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (internal 

quotation marks omitted). “[A] statute found to be overbroad is totally forbidden until and unless a limiting construction or partial 

invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.” FF Cosmetics

FL, Inc. v. City of Miami Beach, 866 F.3d 1290, 1303 (11th Cir. 2017)

(internal quotation marks omitted). The Supreme Court has 

warned that the overbreadth doctrine is “strong medicine” that 

should be used “sparingly and only as a last resort.” Broadrick v. 

Oklahoma, 413 U.S. 601, 613 (1973).

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 18 of 29
21-13489 Opinion of the Court 19

Like their vagueness claim, the plaintiffs’ overbreadth claim

turns on what conduct is prohibited by the definition of riot in 

§ 870.01(2). The plaintiffs argue that the statute is overbroad because on its face it “appears to criminalize . . . protected expressive 

activity, such as willfully participating in a public disturbance by 

photographing or videotaping police conduct after violence 

erupts.” Appellees’ Br. at 58 (alteration adopted) (internal quotation marks omitted). Governor DeSantis and Sheriff Williams again 

counter that the statute is constitutional because it plainly does not 

encompass protected speech and expressly exempts peaceful protesting. See DeSantis Appellant’s Br. at 27 (“The statute . . . prohibits no constitutionally protected speech, let alone a ‘substantial’

amount, and thus cannot be overbroad.”); see Williams Appellant’s 

Br. at 30 (“Because [t]he statute does not sweep in a substantial 

amount of protected speech, or criminalize innocent behavior, it is 

not unconstitutionally overbroad.” (internal quotation marks 

omitted)).

To determine what qualifies as a riot under § 870.01(2), we 

look to the “actual text of the statute,” Boos v. Barry, 485 U.S. 312, 

329 (1988), as well as “any limiting constructions that a state 

court . . . has proffered,” Village of Hoffman Estate v. Flipside, 

Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982). The statute provides: 

A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 19 of 29
20 Opinion of the Court 21-13489

common intent to assist each other in violent and disorderly conduct, resulting in:

(a) Injury to another person;

(b) Damage to property; or

(c) Imminent danger of injury to another person 

or damage to property.

Fla. Stat. § 870.01(2).

The plaintiffs contend that the text raises some questions

about what kind of conduct the statutory definition prohibits. To 

begin with, the statute bars a person from “willfully participat[ing] 

in a violent public disturbance.” Id. But what is required for willful

participation? In its ordinary meaning, to participate means “to take 

part in something . . . to have a part or share in something.” Participate, Webster’s New Third International Dictionary 1646 (2002).

According to the plaintiffs, saying that a person takes part or participates in an event usually reveals little about the degree of the person’s involvement. They argue that common usage suggests that 

she could be actively engaged or passively present. After all, the 

same participation trophy goes to the child who hit the game-winning home run and the child who simply showed up to play the 

game. 

And what kind of conduct constitutes the “violent public disturbance,” Fla. Stat. § 870.01(2), in which a rioter participates? It 

could be argued that the statute indicates that a riot requires more 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 20 of 29
21-13489 Opinion of the Court 21

than a violent public disturbance; it requires that the disturbance 

be one in which three or more people act with a common intent—

not every man and woman for themselves. The violent public disturbance cannot itself be a riot, this argument would go, because 

otherwise the definition would be circular: A person would commit a riot if he willfully participated in a violent public disturbance, 

i.e., a riot. The canons of construction may suggest that “violent 

public disturbance” means something else. See Fuerst v. Hous. 

Auth. of City of Atlanta, 38 F.4th 860, 869 (11th Cir. 2022) (“[T]he 

surplusage canon obliges us, whenever possible, to disfavor an interpretation when that interpretation would render a clause, sentence, or word superfluous, void, or insignificant.” (alteration 

adopted) (internal quotation marks omitted)); Edwards v. Thomas, 

229 So. 3d 277, 284 (Fla. 2017) (applying same canon under Florida 

law).

To construe the statute, we would need to determine the 

mens rea required for a conviction for rioting. The statute first provides that a person is guilty of rioting when he “willfully,” Fla. Stat. 

§ 870.01(2), that is, intentionally, participates in the violent public 

disturbance, see Harris v. State, 318 So. 3d 645, 647 (Fla. Dist. Ct. 

App. 2021) (defining “willful” under Florida state law). But the statute contains another reference to intent: it requires “an assembly 

of three or more persons, acting with a common intent to assist 

each other in violent and disorderly conduct.” Fla. Stat. § 870.01(2). 

To be guilty of rioting does a person also need to share the common intent to assist in violent and disorderly conduct? Or can a 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 21 of 29
22 Opinion of the Court 21-13489

person outside of the assembly, who does not share that common 

intent, nonetheless commit the crime?

A hypothetical helps to explain why it is necessary to answer 

these questions. Imagine a protest. Those attending the protest engage in a wide range of activities. Some people silently hold signs, 

while some chant or sing songs. Others show up to watch or support, with their presence alone, the more active protestors. Now 

imagine that several counter-protestors show up and begin to attack the peaceful protestors. Are the counter-protestors part of the

assembly? Have they created a violent public disturbance? Let’s assume that the answer to these two questions is yes. Now some protestors begin to fight the counter-protestors; others stand passively 

watching the violence; still others continue to chant or hold signs. 

Someone assists a person lying unconscious on the ground; another person washes tear gas from his friend’s eyes. A few people 

pull out their phones and record the fracas. Who has violated 

§ 870.01? The parties sharply disagree about which participants

could be arrested and charged with rioting in this hypothetical scenario. 

According to the plaintiffs, every person present could be arrested and charged with rioting because each willfully participated

in the protest, which became a violent disturbance—even those 

who did not engage in any violence or disorderly conduct themselves. The plaintiffs express concern that protestors could be 

charged with rioting if they remained on the scene after violence 

erupted and continued to protest, assisted those who were injured, 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 22 of 29
21-13489 Opinion of the Court 23

or filmed the events. The plaintiffs acknowledge § 870.01’s savings 

clause, which provides that the law “does not prohibit constitutionally protected activity such as a peaceful protest.” Fla. Stat. 

§ 870.01(7). But even considering the savings clause, they say, the 

prohibition on rioting could be enforced against peaceful protestors because the savings clause contradicts the express terms of the 

statute. See Gay Lesbian Bisexual All. v. Pryor, 110 F.3d 1543, 1545, 

1550 (11th Cir. 1997) (holding that a statute that included the clause 

“[t]his section shall not be construed to be a prior restraint of . . . 

first amendment protected speech” nonetheless reached protected 

speech).

Governor DeSantis and Sheriff Williams disagree with the 

plaintiffs about the hypothetical. The Governor argues that a nonviolent demonstrator cannot be considered as willfully participating in a violent public disturbance simply because violence occurs 

among others who are in close proximity. The Sheriff argues that 

“[a] peaceful protestor who continues to protest peacefully amid 

the chaos created by others will not be committing a riot if the 

peaceful protestor shares no common intent to assist those others.” 

Williams Appellant’s Br. at 19–20. 

But despite their general agreement on the outcome of the 

hypothetical, even the two defendants do not share the same interpretation of the statute. They offer different views about how the 

statutory definition of riot relates to the common law definition. 

Sheriff Williams says that the new definition “merely codif[ied]

Florida’s long-standing common-law definition of ‘riot.’” Id. at 23. 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 23 of 29
24 Opinion of the Court 21-13489

Governor DeSantis’s view has shifted during the litigation. In the 

district court, he initially agreed with Sheriff Williams that the statutory definition simply “mirror[ed]” the common law. Doc. 99 at 

16. But he later changed his view and disclaimed that “the [L]egislature was . . . simply trying to mirror the common law.” Doc. 132 

at 17. Now, Governor DeSantis says that HB 1 “narrow[ed]” the 

definition of “riot” and made it “more specific” than the commonlaw definition. DeSantis Appellant’s Br. at 24.6

The proper interpretation of the statutory definition is a 

novel issue of state law that the Florida Supreme Court has yet to 

address. After careful consideration, we exercise our discretion to 

6 Governor DeSantis’s position that § 870.01(2) narrowed the common-law 

definition of “riot” rests on the assumption that there is a distinction between 

a “tumultuous” disturbance of the peace, as required under the common law,

and a “violent” one, as required by the statute. See DeSantis Appellant’s Br. at 

23. Although he argues that “‘violent’ is more specific and narrower than ‘tumultuous,’” he provides no example of a public disturbance that would be tumultuous but not violent. Id. at 23–24.

At oral argument Sheriff Williams also shifted positions as to the difference 

between the statutory and common-law definitions, suggesting that 

§ 870.01(2) narrowed the common-law definition by adding a second layer to 

the intent requirement: those assembled must share a common intent to assist 

each other in violent and disorderly conduct, and the individual facing prosecution must willfully participate. In this way, Sherriff Williams argued, 

§ 870.01(2) provides additional protection for peaceful protestors. But it is not 

clear how the statute’s intent requirement offers greater protection to peaceful 

protestors or innocent bystanders. At common law a person may be guilty of 

inciting a riot only if his words or actions are “said or done with intent to provoke a riot.” Beasley, 317 So. 2d at 753 (emphasis added).

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 24 of 29
21-13489 Opinion of the Court 25

certify a question to that Court to determine precisely what conduct the definition prohibits. As the United States Supreme Court 

decided under similar circumstances, “we should not attempt to 

decide the constitutional issues presented” in this appeal “without 

first having the [Florida] Supreme Court’s interpretation of key 

provisions of the statute.” Virginia v. Am. Booksellers Ass’n, 

484 U.S. 383, 393 (1988). 

Certification in this circumstance allows us to avoid the friction that could arise if we, as a federal court, addressed the merits 

of the plaintiffs’ pre-enforcement constitutional challenge without 

first giving the Florida Supreme Court an opportunity to interpret 

its State’s law. See Arizonans for Off. Eng., 520 U.S. at 75. As we 

have explained, certification “give[s] the highest court of a state an 

opportunity to . . . attempt to interpret [state law] in such a way as 

to make it constitutional.” Pittman v. Cole, 267 F.3d 1269, 1289–90 

(11th Cir. 2001) (internal quotation marks omitted). Providing this 

opportunity is “especially important, because it may well be that 

the courts of the relevant state are less constrained than is the federal judiciary with respect to statutory interpretation.” Id. at 1290 

(alteration adopted) (internal quotation marks omitted). We conclude that certification is consistent with “respect for the place of 

the States in our federal system.” Arizonans for Off. Eng., 520 U.S. 

at 75.

Importantly, certification is permitted by Florida law. “Florida’s constitution expressly provides for certification to the Florida 

Supreme Court of state law questions that are ‘determinative of the 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 25 of 29
26 Opinion of the Court 21-13489

cause and for which there is no controlling precedent of the supreme court of Florida.’” United States v. Conage, 976 F.3d 1244, 

1263 (11th Cir. 2020) (quoting Fla. Const. art. V, § 3(b)(6)); see also

Fla. Stat. § 25.031; Fla. R. App. P. 9.150. This case raises such a state 

law question. We therefore conclude that certification is appropriate. And if the Florida Supreme Court accepts the certification and 

answers the state law question, adjudication of the remaining federal constitutional questions related to the plaintiffs’ vagueness and 

overbreadth challenges “may indeed become greatly simplified.” 

Arizonans for Off. Eng., 520 U.S. at 80; see generally Spain v. 

Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1312 n.16 

(11th Cir. 2000) (explaining that federal courts are responsible for 

deciding federal law issues when they arise in federal court and may 

not certify those issues to a state supreme court).7

We certify to the Florida Supreme Court the following question of law:

What meaning is to be given to the provision of Florida Stat. § 870.01(2) making it unlawful to “willfully 

participate[] in a violent public disturbance involving 

an assembly of three or persons, acting with a 

7 Although we conclude that certification is appropriate in this case, we emphasize that we are not adopting a bright-line rule that certification is the only 

appropriate course of action when an appeal raises a constitutional question 

that turns upon a novel question of state law. Instead, as we have previously 

recognized, “federal courts have discretion to certify” questions. Pittman, 

267 F.3d at 1289.

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 26 of 29
21-13489 Opinion of the Court 27

common intent to assist each other in violent and disorderly conduct, resulting in . . . [i]njury to another 

person; . . . [d]amage to property; . . . or [i]mminent 

danger of injury to another person or damage to 

property”?

To assist the Florida Supreme Court in answering our question, we ask the Court to consider:

1. What qualifies as a “violent public disturbance”? Is 

it something more than “three or more persons[]acting with a common intent to assist each 

other in violent and disorderly conduct resulting 

in injury to another person, damage to property, 

or imminent danger of injury to another person or 

damage to property”?

2. What conduct is required for a person to “willfully 

participate in a violent public disturbance”? Can a 

person “willfully participate in a violent public disturbance” without personally engaging in violence and disorderly conduct or advocating for violence and disorderly conduct? If so, what level of 

“participat[ion]” is required?

3. To obtain a conviction, does the State have to 

prove beyond a reasonable doubt that the defendant intended to engage or assist two or more other 

persons in violent and disorderly conduct? If not, 

what must the State prove regarding intent?

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 27 of 29
28 Opinion of the Court 21-13489

4. May a person be guilty of the crime of riot if the 

person attends a protest and the protest comes to 

involve a violent public disturbance in which 

three or more people acting with a common intent to assist each other engage in violent and disorderly conduct and the violent disturbance results in injuries to another person, damage to 

property, or imminent danger of injury to another 

or damage to property, but the person did not engage in, or intend to assist others in engaging in, 

violent and disorderly conduct? 

Of course, our statement of the certified question is merely 

suggestive and “does not limit the inquiry of the Supreme Court of 

Florida or restrict its consideration of the issues that it perceives are 

raised by the record certified in this case.” Pincus v. Am. Traffic 

Sols., Inc., 986 F.3d 1305, 1321 (11th Cir. 2021) (internal quotation 

marks omitted). “In short, we leave all aspects of the state law issues in the Florida Supreme Court’s hands. That Court’s assistance 

will be, as always, greatly appreciated.” Essex Ins. Co. v. Zota, 

466 F.3d 981, 990 (11th Cir. 2006), certified question answered, 

985 So. 2d 1036 (Fla. 2008).

IV. 

We defer our decision as to the preliminary injunction this 

case until the Florida Supreme Court has had the opportunity to 

consider our certified question and, if it chooses to answer, until 

after we receive its answer. The entire record on appeal in this case, 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 28 of 29
21-13489 Opinion of the Court 29

including copies of the parties’ briefs, is transmitted along with this 

certification.

QUESTION CERTIFIED. 

USCA11 Case: 21-13489 Document: 84-1 Date Filed: 01/10/2023 Page: 29 of 29