First, in United States v. Rudo, ---F3d ---, No. 19-50189 (9th Cir. 2021), the Court reversed the district court’s dismissal of an indictment charging conspiracy to violate the Anti-Riot Act and substantively violating the Act.
The district court held the Act was unconstitutional, as facially overbroad under the First Amendment.
The Ninth Circuit disagreed. Although it too found parts of the Act criminalized protected speech, and were thus unconstitutional, it determined these provisions were severable. And with such severance, the Act was not facially overbroad, but rather prohibits unprotected speech that instigates an imminent riot, unprotected conduct such as committing acts in furtherance of a riot, and aiding and abetting of that speech or conduct.
The opinion's conclusion provides a pretty good summary: "Once the offending language is elided from the Act by means of severance, the Act is not unconstitutional on its face. We recognize that the freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society. Nevertheless, it would be cavalier to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them. Of course, the government cannot act to avert a perceived danger too soon, but it can act before it is too late. In short, a balance must be struck. Brandenburg struck that balance, and the Act (after the elisions) adheres to the result. Therefore, we reverse the district court’s dismissal of the indictment and remand for proceedings consistent with this opinion."
Next, in United States v. Lucero, --- F.3d ---, No. 19-10074 (9th Cir. 2021), the Court reversed a conviction on three counts of knowingly discharging a pollutant in violation of the Clean Water Act. This case involves a very complicated analysis of a variety of statutory and regulatory provisions.
But at bottom, the majority opinion concluded the Act requires the government to prove that a defendant knew he was discharging material “into water,” but need not prove that the defendant knew he discharged the pollutant in “to waters of the United States.” The Court held that, unlike the former phrase, the latter phrase was a jurisdictional element that did not require knowledge.
The Court vacated Lucero's convictions because the jury instructions failed to make clear the requirement that the defendant knew the pollutant was discharged “into water,” and it could not say that the error was harmless beyond a reasonable doubt.
