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Federal judge rejects Proud Boys’ attempted ‘free speech’ Capitol riot defense

Proud Boys members Ethan Nordean, left, and Zachary Rehl, right, walk toward the U.S. Capitol in Washington.

Carolyn Kaster/AP

  • A judge rejected a motion to dismiss Capitol riot charges against four accused Proud Boys members.
  • The defendants previously argued that the First Amendment protected their January 6 conduct.
  • The four men remain in jail ahead of their trial scheduled for May. 

A federal judge on Tuesday declined to dismiss a sprawling criminal indictment charging four accused leaders of the far-right extremist Proud Boys with conspiring to attack the US Capitol on January 6.

Defense attorneys representing the four men previously argued that the conduct of their clients, Ethan Nordean, Joseph Biggs, Zachary Rehl, and Charles Donohoe, was protected by the First Amendment right to free speech. 

But Judge Timothy Kelly rejected the defendants’ motion to dismiss the charges against them in a Tuesday filing reviewed by Insider, arguing they could have used several other, non-violent means of expressing their thoughts about the 2020 election. 

“No matter defendants’ political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment,” wrote Kelly, who was appointed to the bench by former President Donald Trump. “Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests.”

In March, the four men were charged with trespassing, destruction of property, and interference with law enforcement.

“Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had,” Kelly added, citing a previous court decision that determined demonstrations that turn violent lose their First Amendment protections. 

Nordean and Biggs were initially granted pretrial release under strict conditions earlier this year but were sent back to jail after prosecutors introduced new evidence against them in April.

All four remain in jail ahead of their trial scheduled for May. 

In their motion to dismiss the charges against them, the accused argued that they couldn’t have obstructed Congress’s certification on January 6 because it was not an “official proceeding” under the law. The filing cited a lack of mandatory witness appearances at the joint session as proof that the event was dissimilar to other “official” proceedings.

Kelly, however, disagreed. 

“The Court is not persuaded,” the judge wrote. “The relevant actors here — Vice President Pence and the members of Congress — were ‘directed to appear’ by both statute and the Constitution.”

Attorneys for Donohoe and Biggs declined to comment on Tuesday’s decision. Lawyers for Nordean and Rehl did not immediately respond to Insider’s request for comment. 

The decision comes as the US Justice Department looks to build a comprehensive conspiracy case against members of the neo-fascist group of self-defined “Western chauvinists,” dozens of whom have been identified as participating in the insurrection.

Earlier this month, a self-identified Proud Boy became the first public member of the group to plead guilty to conspiracy charges and agree to cooperate with prosecutors. 

Nordean of Washington, Biggs of Florida, Rehl of Pennsylvania, and Donohoe of North Carolina, are all alleged to have served as organizers or presidents of local Proud Boys chapters, according to charging documents. 

Federal prosecutors say Proud Boys members gathered at the Washington Monument ahead of the January 6 riot and marched to the Capitol before Trump finished his “Stop the Steal” rally near the White House. According to investigators, members of the extremist group were among some of the first rioters to breach the Capitol barriers and enter the Capitol building. 

More than 700 people have been charged in connection to the deadly Capitol attack and more than 150 have pleaded guilty. 

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