The federal anti-riot law (18 U.S. Code § 2101) was originally enacted in 1968 to silence and punish civil rights and anti-Vietnam War activists, but has been amended after constitutional challenges since then. It now states:
Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—(1) to incite a riot; or (2) to organize, promote, encourage, participate in, or carry on a riot; or (3) to commit any act of violence in furtherance of a riot; or (4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot; and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph— Shall be fined under this title, or imprisoned not more than five years, or both.
At the state level, US Protest Law Tracker reports that as of November, 2020, 136 bills had been presented in state legislatures that would more heavily criminalize protests that were unlawful, disorderly, violent or causing property damage. Many of those bills actually passed. Of course, “unlawful” and “disorderly” can simply mean refusing an order by the police to disperse. Thus these laws, like the original 18 U.S.C. 2101, pose serious risks to constitutional rights to expression and assembly.
But how are these laws actually enforced? I want to focus on two cases of the enforcement, or nonenforcement, of the federal law, one here in Champaign–Urbana, the other in Washington, D.C.
I will not dwell at great length on the local case, as Janice Jayes has already written about it in the last issue of the Public i.
This case involves Shamar Betts, a young Black man, twenty years old when he was arrested. He had no criminal record. But he felt that he had to do something after the string of killings of unarmed Black men by the police, especially the horrifying murder of George Floyd. So he sent out a Facebook post urging people to gather at the Market Place Mall in Champaign. Jayes quotes him as saying to her that “they didn’t listen when we were peaceful so we gone [sic] hit them where it hurts . . . I just wanted to do something to show that we shouldn’t be going through this.” He says that he was surprised that so many people showed up. Some of them broke store windows and looted. Betts took some clothes. The Champaign police arrested some of those accused of looting and charged them under state statute.
But Betts had the federal government come down on him very hard because he used Facebook. That is considered by the feds to be interstate commerce. So while the others are walking around freely, Betts continues to sit in jail awaiting trial—no bail permitted.
Let’s now turn to the national case, of Donald J. Trump, a 74-year-old super-wealthy white guy. Oh yes, he also happened to be the President of the United States when his incitement occurred on January 6, 2001.
“Poor” is a relative term. Most young Black males are poor because they and their families lack the resources necessary to live the kinds of lives that middle- or upper-class whites live. Donald thought he was poor in the sense that he got cheated out of a second presidential term—as in “you’re fired, Donald!”—while Donald claims that the majority really did not fire him at all. But he was forced to leave his Washington home anyway. And he and his supporters maintain that unfair, indeed unlawful, force—i.e., “faking” the election results—must be met with a counter-force. Hmm, how can he muster that?
He can do that by rallying his troops, just as Betts rallied his. He can, using the interstate media, tell his supporters that it is they who have been cheated out of their constitutional rights to elect a president. And he can tell them, at the rally of January 6 at the Ellipse in Washington, D.C., that they should march on the Congress, that he will march with them (a cowardly lie) and that “We fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” While the crowd was not carrying guns, which are illegal in D.C., some were wearing combat military gear and carrying items that could and would be used as weapons, such as hockey sticks, flag poles, shields, and chemical spray cans.
Even if Trump also said that the group should be peaceful, it was a wink and a nod. He knew the nature of the groups he had called to assemble. He knew their history of violence, which he tried to justify after their violence at Charlottesville, Virginia that killed young, peaceful demonstrator Heather Heyer. Trump responded to the death and the neo-Nazi torchlight parade by saying that “I think there’s blame on both sides,” equating the peaceful demonstrators with violent neo-Nazis and other far-right extremists who were there to fight the peaceful anti-racist demonstrators on the other side. These attackers were the people that he had urged to “stand back and stand by.” And in his call for them to rally on January 6, he told them that it was going to be “wild.”
January 6 was not the first time he had approved of, or urged, violence. On July 28, 2020, in a speech to law enforcement officers, he urged them to hit the heads of people they arrest against the roofs of the police cars as they place them into the cars. In January, 2016, at a rally in Cedar Rapids, Iowa, he said to the crowd, “If you see somebody getting ready to throw a tomato, knock the crap out of them, would you? Seriously. Okay? Just knock the hell—I promise you, I will pay for the legal fees.” This was when he saw the crowd begin to confront a protester at his event. He had peaceful protesters violently dispersed so he could pose with a Bible in front of a church. And he has bragged about violence he could commit without being held accountable, such as grabbing women by their genitals and shooting someone in the middle of Broadway in New York City. The whole aura around this man bares the stench of intimidation and violence.
By urging the January 6 crowd to “fight like hell” to stop the US Congress from performing its constitutional function of certifying the result of a presidential election, Trump was not only inciting violence. He was also advocating subversion of the US government. As a result, five people died and 140 police officers were injured.
How much worse is that than what 20-year-old Shamar Betts did? If Betts was inciting violence, it was only against property, as he was distraught after the death of so many Blacks at the hand of the police. No one died at the shopping center. Yet it was Betts, not Trump, the perverted chief executor of U.S. laws, who was arrested for violating federal law. It is Betts, not Trump, who sits in jail. It is Betts, not Trump, who risks going to a federal penitentiary.
It is extremely doubtful that Trump will ever be held legally accountable for his incitement to riot and subversion. Sorry Shamar, this is how far American politics and justice has degenerated. No mercy for the vulnerable, impunity for the powerful.
Belden Fields is an activist and writer on human rights and social justice. He is the author of Rethinking Human Rights for the New Millennium, and has written many articles on the violation of those rights by the police. In 2013, he received the Victor J. Stone Award for a lifetime of service to civil liberties from the Champaign County ACLU.