Rethinking the Crime of Rioting

By Nick Robinson. Full Text.

The fear of riots has long loomed large in the public imagination. This fear is at least partly justified. Riots can present unique challenges, both in the harm they can cause and in the government’s ability to control them. However, from the American colonies to the Civil Rights era, there is also a history of members of largely nonviolent social movements being tarred as “rioters.”

This use of the label of “rioting” to undermine dissent is not just a political problem but also a legal one, and it has once again reemerged. Although the Black Lives Matter protests of 2020 were overwhelmingly nonviolent, in the year that followed, state lawmakers pointed to violence that did occur to introduce legislation in over half of U.S. states that would strengthen or expand rioting offenses. This wave of new anti-rioting legislation has been criticized as an attempt, not to address violence, but rather to target and intimidate peaceful protesters.

Despite the prominence of rioting in U.S. history, the criminal offenses of rioting and incitement to riot have been strikingly understudied. To help fill this gap and better situate this recent surge of legislation, this Article provides the first systematic analysis and critique of these crimes in the United States. It traces how these offenses are rooted in an English common law heritage where the crime of rioting was a blunt tool that the government frequently used to suppress political and religious dissent. It then shows that although today’s U.S. anti-rioting legal measures vary considerably by jurisdiction, in an age of mass protest movements, they can often undermine the freedom of peaceful assembly.

The core offense of rioting—violence or property destruction by individuals as part of a group—is already unlawful under other parts of the criminal law. However, many rioting offenses expand criminal liability to those who engage in no violence themselves but are simply part of a crowd that is “rioting” or create liability for conduct that only threatens property destruction or violence. Meanwhile, incitement to riot provisions can frequently capture merely provocative speech. These crimes against rioting provide law enforcement wide discretion—a discretion which has a history of politicized and racialized abuse.

Government has a clear interest in stopping riots. However, this Article argues that, given a range of other tools available to achieve this goal and the history of these crimes being used against nonviolent protesters, jurisdictions are better off eliminating the offenses of rioting and incitement to riot altogether. Where that is politically infeasible, this Article lays out a framework to better target these crimes to minimize the risk of their misuse.