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Judge to Proud Boys: No, Violently Storming the Capitol Isn’t a First Amendment Exercise

A federal judge is not buying the First Amendment argument that the Proud Boys are spinning in an attempt to evade criminal punishment for their alleged participation in the attack on the U.S. Capitol. U.S. District Judge Timothy Kelly on Tuesday refused to throw out charges against four members of the far-right group—Ethan Nordean, Joseph Biggs, Zachary Rehl, and Charles Donohoe—who were indicted in March on riot-related offenses, including conspiracy and obstructing an official proceeding. (All have pleaded not guilty.) Lawyers for the four men had sought to dismiss the charges by arguing, among other things, that the conduct they have been accused of engaging in is protected by the First Amendment right to free speech. But Kelly, an appointee of former president Donald Trump, argued that’s not how that protection works. 

“Quite obviously, there were many avenues for Defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on January 6, without resorting to the conduct with which they have been charged,” Kelly, wrote in Tuesday’s 43-page opinion. That conduct includes trespassing, destruction of property, and interference with law enforcement, per Bloomberg. “Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests,” Kelly wrote. “Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.”

The four leaders of the Proud Boys are not the only riot defendants that the U.S. government has charged with obstructing an official proceeding. Prosecutors have relied on the statute—which carries a maximum imprisonment of 20 years—to charge hundreds of people involved in the January 6 riot, many of whom have challenged its legality in court, according to CNN. Kelly on Tuesday became the fourth D.C. District Court judge to allow prosecutors’ use of the law to stand, writing that the “Court is not persuaded” by defendants’ claim that Congress’ certification of the Electoral College vote was not  an “official proceeding.” The Proud Boys’ case is one of the most serious conspiracy cases against Capitol riot defendants, and Kelly siding with the Justice Department gives “momentum to prosecutors as they prepare for the first wave of U.S. Capitol riot-related trials beginning in February,” CNN notes.  

The government’s win comes a week after two members of a different right-wing group, the Oath Keepers, tried and failed to get Judge Amit Mehta, also presiding in D.C.’s federal court, to throw out the obstruction charge against them in another pivotal January 6 case. In that case, the defendants were also unsuccessful in arguing that Congress’s certification of the electoral results was not an “official proceeding” and that their alleged activities were protected free speech. 

As prosecutors win support for their use of the obstruction charge against January 6 defendants, Representative Liz Cheney (R-Wyo.) has raised the prospect of Donald Trump himself facing possible obstruction charges depending on what new evidence the panel finds. Cheney, the vice-chair of the House committee investigating the insurrection, referenced the criminal statute earlier this month at a House panel hearing where she pushed for Mark Meadows, Trump’s last White House chief of staff, to be held in contempt for refusing to cooperate. (The House eventually did hold him in contempt. ) Meadows’s testimony, Cheney said, “will bear on a key question in front of this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”

Meanwhile, the panel has been ramping up in recent days and is potentially turning to other members of Trump’s inner circle, such as Rudy Giuliani, to gain more insight into Trump’s involvement in the insurrection. 

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