It’s never a good thing when the court invokes Rosa Parks and the Tallahassee Bus Boycott in the first paragraph of the opinion. And if Florida Gov. Ron DeSantis (HLS 2005) was under any illusion that his patently unconstitutional anti-protest law would pass muster with US District Judge Mark E. Walker, he was swiftly disabused of the notion in yesterday’s blistering order.

“What’s past is prologue,” the judge wrote, invoking “1956 and 1961, [when] Florida’s anti-riot laws were used to suppress activities threatening the state’s Jim Crow status quo.”

At issue was this provision from the recently enacted Combatting Public Disorder Law (HB1):

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.

The plaintiffs, a coalition of civil rights and racial justice organizations, argued that the law criminalized protest by subjecting all participants to criminal liability if any three persons present commit violence or property damage. The governor conceded that one could read the law that way, but hoped that the court would go with an alternative interpretation that only the three conspirators are liable.

The law enforcement defendants took the position that the governor’s interpretation was the only plausible way to read the statute. Also that they, county sheriffs who are explicitly charged with enforcing the statute and are liable for damages if they don’t, are not state actors. Which is … a choice.

“In short, Defendants’ preferred construction is neither reasonable nor readily apparent given the plain language of the statute,” Judge Walker wrote, before noting that the law’s “wide scope of potential interpretations … empowers law enforcement officers to exercise their authority in arbitrary and discriminatory ways.”

As proof that the Act’s vagueness chilled their exercise of speech by blurring the line between protected protest and illegal riot — not to mention stoking fears that an outside agitator might commit crimes which would implicate innocent protestors — the plaintiffs presented copious evidence that their organizing efforts produced vastly diminished crowds after the law’s passage.

And in turn Gov. DeSantis produced some extremely gross racism, including evidence that unrelated Black civil rights groups in other parts of the state had organized marches.

“Though it is true the event flyers include images of Black men and women apparently engaged in peaceful protest, Plaintiffs are not before this Court representing all Black men and women in the State of Florida,” the court noted acidly.

DeSantis also included this flier for a Juneteenth celebration of “Black Joy” as proof that the defendants felt free to express their opposition to the government.

That was also … a choice. And perhaps an unwise one, considering the reaction in provoked from the court.

Here, the Governor has conflated a community celebration of a federal holiday commemorating the end of slavery with a protest. He does so to argue that Plaintiff Chainless Change’s claimed injury of chilled speech and self-censorship is not to be believed. It should go without saying that a public gathering of Black people celebrating “Black joy” and release from bondage does not automatically equate to a protest—or something that the Governor apparently implies should be chilled by the new riot law if Plaintiff Chainless Change’s claimed injury is to be believed.

Tell us the defendant is a filthy racist without telling us the defendant is a filthy racist.

If Governor DeSantis included this particular post to imply that any gathering of Black people in a public space is a de facto protest, Plaintiffs’ concerns about the how the statute’s new definition of “riot” will be enforced are indeed well-founded.

That’ll do it.

The “riot” provision of the law is enjoined, with no stay pending appeal, so now it’s on to the Eleventh Circuit.

Dream Defenders v. DeSantis [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.