After the killing of George Floyd in 2020, the nation exploded in protests that covered at least 140 cities. The protests had far-reaching implications on the discourse surrounding police violence, specifically racially motivated police violence, and caused millions to re-examine their views on racial discrimination in the twenty-first century. However, the demonstrations also sparked a wave of legislation cracking down on protest activity, with at least eight states passing so-called “anti-riot” acts by mid-2021.[i] Florida was one such state. Governor DeSantis signed HB1, in April 2021. It was almost immediately challenged in Federal Court and eventually subject to an injunction by the United States District Court for the Northern District of Florida.[ii]

The District Court granted the injunction on first and fourteenth amendment grounds.  They noted that the plaintiffs were likely to succeed in their claim that the statutory definition of the word “riot” was unconstitutionally vague under the due process clause[iii].  A law is unconstitutionally vague if its “prohibitions are not clearly defined.” Because such laws fail to provide “fair warning” of what is required, they tend to encourage arbitrary enforcement by giving government officials the sole authority to interpret the scope of the law.[iv]

Now the Eleventh Circuit for the United States Court of Appeals has weighed in on the issue and conclusively decided that it cannot yet decide whether the law is vague, at least not until the Florida Supreme Court has had a chance to make it less so. While maintaining the injunction in place, the Circuit Court found it “appropriate to give the Florida Supreme Court the opportunity to provide an authoritative interpretation of the state law before [the circuit court] decide[s] whether the law is constitutional[,]” and certified a question regarding the meaning of the word “riot” in the new state law.[v]

What makes the new Florida statute peculiar, among similar anti-riot statutes, is that Florida Law has already penalized rioting under the common law definition for decades. Therefore, the statute’s drafters decided instead to redefine “riot.” The new law provides that:

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 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.[vi]

Under the common law definition, a prosecutor had to prove beyond a reasonable doubt that the defendant was one of the “three or more persons acted 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.”[vii] Conversely, the new statutory definition seems to leave open the possibility of charging individuals who were not the ones creating the disturbance but that were nonetheless willfully participating in some manner. One could, for example, think of a situation where members of a peaceful protest attempt to stop or subdue the actors in a situation that has turned violent, and they, too, could be charged with “rioting.” One could also imagine the even more likely situation of non-actors being charged as participants in the “riot” for simply continuing to protest in the location where disorderly conduct previously occurred and was quelled.

As the District Court explained, there appears to be too much ambiguity in the definition: “participates” could require a person to actively join in the disturbance or include a mere failure to leave as soon as the violence starts; “willfully participated” could refer to participation before the protest turned violent or after; and the statute could even unconstitutionally require that protesters “stop expressing their views and leave the scene at the first sign of a potential riot.” The defendant’s themselves do not seem to agree on what the new definition does. One claims it simply codifies the common law definition, while the other claimed on appeal, after initially agreeing with their co-defendant, that the statute “narrows” the definition of riot.[viii]

The District Court believed that an individual of ordinary intelligence could read the statute and be unsure of the real-world consequences. In other words, ambiguity begets vagueness. The Circuit Court, on the other hand, seems to believe that may not be enough. They believe the Florida Supreme Court should have a chance to clarify the ambiguities. Yet questions linger: Would that be enough? Would the ordinary protester be aware of how the Florida Supreme Court answers the question? By which definition would an overzealous police force abide? Would the statute as written already serve to chill free speech and discourage peaceful protests? Under Florida, Law ambiguity persists and it remains uncertain if a peaceful protest is or is not a riot.

[i] See Sophie Quinton, Eight States Enact Anti-Protest Laws, Pew Trust (June. 21, 2021), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/06/21/eight-states-enact-anti-protest-laws.

[ii] A Judge Has Blocked The ‘Anti-Riot’ Law Passed In Florida After George Floyd Protests, NPR (Sept. 9, 2021, 8:14 PM) https://www.npr.org/2021/09/09/1035687247/florida-anti-riot-law-ron-desantis-george-floyd-black-lives-matter-protests.

[iii] Dream Defs. v. DeSantis, 559 F. Supp. 3d 1238, 1281–82 (N.D. Fla. 2021).

[iv] Dream Defs. v. Governor of the State of Fla., 57 F.4th 879, 890 (11th Cir. 2023).

[v] Id at 884.

[vi] Fla. Stat. § 870.01(2).

[vii] State v. Beasley, 317 So. 2d 750, 753 (Fla. 1975).

[viii] Dream Defs, 57 F.4th at 893.