Whether the Anti-Riot Act is facially unconstitutional

QUESTION PRESENTED The Anti-Riot Act, 18 U.S.C. § 2101, criminalizes the combination of two acts: (1) an interstate-commerce act undertaken with intent to incite, organize, promote, encourage, participate in, or carry on a riot, to commit any act of violence in furtherance of a riot, or to aid and abet any of these purposes; and (2) an “overt act” performed for any of those same purposes. The Act expressly includes within its scope “advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” 18 U.S.C. § 2102(b). The circuits are divided on the Act’s constitutionality. In this case, the Ninth Circuit read “overt act” as requiring an act that completed one of the riot-related purposes, and even under that interpretation, found significant portions of the statute unconstitutional for failure to satisfy the imminence test this Court set forth in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). Elsewhere, the Fourth Circuit construed the Act as an attempt statute, and, applying that construction, concluded that an overlapping (but not identical) portion of the statute was unconstitutional. And the Seventh Circuit read overt act as the Ninth Circuit did, but upheld the entire statute as constitutional. All three courts acknowledged significant doubt about the constitutionality of the Act if “overt act” was read in its well-settled and ordinary sense as requiring only manifestation of a riot plan. The question presented is: Whether the Anti-Riot Act is facially unconstitutional, because it cannot be interpreted, faithful to its plain text and consistent with congressional intent, in a manner that comports with the First Amendment. @)