#SistersInLaw 279: A Riot Is An Ugly Thing
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Feb 18, 2026 They unpack laws on incitement, the Anti-Riot Act, and why prosecutions are rare. They debate the legal risks of labeling actions as domestic terrorism and consequences for due process. They cover protesters’ access to counsel and how Gideon rights apply. They explain congressional tools for accountability and discuss ethics around DOJ lawyers refusing unlawful orders. Gender and media treatment of reporters also come up.
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High Bar For Charging Incitement
- Brandenburg v. Ohio sets a high bar: speech is protected unless intended and likely to produce imminent lawless action.
- Because of that, charging incitement for events like January 6 is legally difficult.
Existing Statutes Have Narrow Reach
- The Anti-Riot Act and insurrection statutes exist but require specific elements like interstate travel or overthrow intent.
- Prosecutors rarely use them because of constitutional speech limits and complex evidentiary elements.
Limit Labels To Protect Due Process
- Avoid using non‑statutory labels like "domestic terrorist" in pretrial publicity to prevent tainting juries.
- Stick to charges that match the indictment to reduce due process and appeal risks.
