It’s not often that a judicial decision is celebrated as a “monumental victory” by the ACLU and Florida Governor Ron DeSantis.[1] But that’s exactly what happened with the recent unanimous Florida Supreme Court decision in DeSantis v. Dream Defenders.[2]

In 2021, the Florida Legislature passed the “Combatting Violence, Disorder and Looting and Law Enforcement Protection Act” (also known as HB 1). This law defines the crime of a “riot,” an offense previously defined by common law. Under HB 1, a riot occurs when an individual “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.”[3]

A group of civil rights organizations that regularly engage in non-violent protests and demonstrations, including chapters of the NAACP and Black Lives Matter in Florida, challenged the new law. They sued the governor, three Florida sheriffs, and the Florida Attorney General in the U.S. District Court for the Northern District of Florida.[4]

The plaintiffs argued that the law violated the First Amendment because it could criminalize “continuing to protest peacefully while others commit violence.”[5] Specifically, they argued that the law was vague in violation of the Fourteenth Amendment and unconstitutionally overbroad in violation of the First and Fourteenth Amendments. In response, the defendants argued that “a person who is peacefully protesting does not commit a riot.”[6]

The federal district court agreed with the civil rights organizations and enjoined enforcement of the law.[7] On appeal, however, the United States Court of Appeals for the Eleventh Circuit found that since the federal constitutional questions turned on the statute’s scope, it would refer the case to the Florida Supreme Court.

The Florida Supreme Court agreed to address three questions posed to it by the Eleventh Circuit:

  • “What qualifies as a ‘violent public disturbance’?”
  • “To obtain a conviction, does the State have to prove beyond a reasonable doubt that the defendant intended to engage or assist two or more other persons in violent and disorderly conduct?”
  • “May a person be guilty of the crime of riot if the person attends a protest” where others engage in violent and disorderly conduct, “but the person did not engage in or intend to assist others in engaging in, violent and disorderly conduct.”[8]

The court found that the common law history of the crime of “riot” helped answer each of the certified questions.[9] The court traced the history of the crime of riot from its “deep roots in English law” to the Florida Territorial Council and into statehood.[10] The court identified three themes from this history: 1) a riot was “understood as a crime against the ‘public peace’” rather than against a specific victim; 2) riots generally (but not always) had a shared aim or purpose; and 3) “violence is intrinsic to a riot.” “To protest passionately, without more, is not to ‘riot’ in the historic sense of the term.”[11] The court presumed that the Florida Legislature did not “scour[] the dirt from these common-law roots,” but instead had intended to incorporate these concepts into its new law.[12] 

Turning to the first certified question, the court found that a “violent public disturbance” requires not just a “disturbance of the peace,” which could include any kind of public disturbance, but a “violent” disturbance.[13] This requires harm to persons or property on top of any disturbance of peacefulness. The court found the Florida law further narrowed “the class of public disturbances that rise to the level of criminal riot” by requiring “at least imminent danger of injury or property damage.”[14]

With regard to the second question, the court found that in order to convict someone of “willfully participat[ing]” in a riot, the individual must have been acting violently and must have “intentionally, knowingly, and purposefully” chosen to be part of the riot.[15] The court emphasized that this reading accorded with “the historical understanding of riot as a crime of violence,” with the statutory text, and “with common sense.”[16]

Finally, for the third question, the court held that “[a] peaceful protestor, under the most natural reading of the statute, is no rioter.”[17] Indeed, the court found that the law was unambiguous in this respect.

The opinion of the court was unanimous. However, Justice Jorge Labarga concurred only in the result. He found that the language in the statute was ambiguous as a result of the Florida Legislature’s use of the modifier “involving,” which he said was intended to expand the definition of riot.[18] However, he concluded that while the majority’s reading was not unambiguously correct or “the one best reading,” it should nevertheless be embraced because “the rule of lenity requires it.”[19]

The lawsuit now goes back to the Eleventh Circuit. In light of the Florida Supreme Court’s answers to the certified questions, it is likely the plaintiff civil rights organizations will lose their battle and that Florida’s anti-riot law will be allowed to go into effect. However, they will have won a significant victory by ensuring that protestors will not be convicted for merely attending and participating in protests or demonstrations so long as they are not contributing to or engaging in violence. And that might be an outcome that pleases all sides.

[1] Press Release, ACLU Florida, Florida Supreme Court Issues Decision Confirming that Anti-Protest Law Cannot be Used to Prosecute Non-Violent Protestors or Bystanders (June 20, 2024), available at https://www.aclufl.org/en/press-releases/florida-supreme-court-issues-decision-confirming-anti-protest-law-cannot-be-used; see also Attorney General Ashley Moody (@AGAshleyMoody), X (June 20, 2024, 3:33 PM), https://x.com/AGAshleyMoody/status/1803873787362054556 (statement by Florida Attorney General Ashley Moody praising the decision on behalf of herself and Governor DeSantis). 

[2] DeSantis v. Dream Defs., 389 So.3d 413 (Fla. 2024).

[3] Fla. Stat. § 870.01(2) (2021).

[4] Dream Defs., 389 So.3d at 416-17 nn.4-5.

[5] Id. at 417.

[6] Id.

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

[8] Dream Defs., 389 So.3d at 418.

[9] Id. at 418-19.

[10] Id. at 419.

[11] Id. at 420-21.

[12] Id. at 421.

[13] Id. at 422.

[14] Id. at 423.

[15] Id. at 424.

[16] Id.

[17] Id. at 425.

[18] Id. at 426-27 (Labarga, J., concurring)

[19] Id. at 427.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].