Judge rejects Proud Boys’ First Amendment claims

WASHINGTON (CN) — A federal judge rejected First Amendment claims brought by a group of Proud Boys on Tuesday, allowing criminal charges against the members of the far-right organization to proceed through federal court. 

U.S. District Judge Timothy Kelly sided with the Justice Department in his 43-page opinion, writing that the conduct that Ethan Nordean, Joseph Biggs, Zachary Rehl and Charles Donohoe were charged with is not shielded under the constitution, as the Jan. 6 Capitol riot was not a protected First Amendment demonstration. 

“No matter defendants [sic] political motivations or any political message they wished to express, this conduct is simply not protected by the First Amendment,” wrote Kelly, a Donald Trump appointee. “Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.”

There were many ways for voters to express their opinions about President Joe Biden's win in the 2020 election, Kelly said, but the four Capitol rioters were not charged with burning flags, wearing black armbands or doing sit-ins or protests. 

“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,” the ruling states.

Since September, the four Proud Boys have been attempting to get the felony charge  — obstruction of an official proceeding, which carries up to 20 years in prison — against each of them dropped, arguing not only that they were merely exercising their right to free speech, but also that the statute defining “official proceeding” is unconstitutionally vague. An official proceeding must be quasi-adjudicative, or quasi-judicial, attorneys for the Proud Boys argued —  and the certification of the electoral votes was neither. 

But Kelly didn't buy the argument.

“An ‘official proceeding’ is defined in the statute as a ‘proceeding before the Congress’ and Congress’s certification of the Electoral College vote qualifies as such,” the judge wrote. "That the statute has not been applied to Congress’s certification before does not mean that someone of 'ordinary intelligence' would not be forewarned of this application of the statute’s plain language."

Kelly is the fourth judge so far to uphold the obstruction of an official proceeding charge in challenges brought by Capitol rioters. Just last week, U.S. District Judge Amit P. Mehta rejected an attempt to get the charges dropped by members of the Oath Keepers, another far-right extremist organization that participated in the riot. 

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