Supreme Court won’t review Jan. 6 prison sentence for Infowars host

WASHINGTON (CN) — The Supreme Court declined on Monday to review Infowars host Jonathon Owen Shroyer’s attempt to overturn his two-month prison sentence.

Shroyer attended the Stop the Steal rally and marched to the Capitol on Jan. 6, 2021. Unlike other Jan. 6 rioters, Shroyer did not enter the Capitol building during the riot or engage in violence or destruction.

The Infowars host pleaded guilty to illegally entering a restricted area for standing on the Capitol steps during the riot. Shroyer led the crowd in chants calling Democrats tyrants and said “Today, on January 6, we declare death to tyranny!”

Shroyer asked the Supreme Court to review his case for First Amendment violations. He argued that the lower court used protected speech to impose a prison sentence.

“Is that the law?” Robert E. Barnes, an attorney with Barnes Law representing Shroyer, wrote in his petition. “Is the United States truly a country that will allow citizens, and particularly journalists, to be incarcerated for their speech?”

The justices did not explain their decision not to hear Shroyer’s appeal. There were no noted dissents or recusals.

The Supreme Court has come under fire for ethics scandals that called into question Justice Samuel Alito’s impartiality in Jan. 6 cases. Reporting from the New York Times revealed that the George W. Bush appointee flew an upside-down flag — a protest symbol for Capitol rioters and the “Stop the Steal” movement — at his Virginia home after Jan. 6, 2021.

Democrats in Congress called for him to recuse from cases involving Donald Trump or Jan. 6. All nine justices recently agreed to an ethics code requiring recusal when a reasonable person could question their impartiality in a case. Alito blamed his wife for the political flag and said no reasonable person would think the flag met the recusal standard.

In Shroyer’s case, the government advocated for a four-month prison sentence, claiming that his election lies helped create Jan. 6 even if he didn’t engage in the violence that day.

Shroyer hosts a daily show on Infowars, the website owned by conspiracy theorist Alex Jones. Prosecutors claimed that Shroyer used violent rhetoric and election disinformation to stoke the fire of hundreds of thousands of his followers leading up to Jan. 6.

“The events of January 6th did not happen in a bubble; individuals like Shroyer stoked the fires of discontent with the outcome of the 2020 Presidential election online, driving a mob of individuals to descend on Washington, D.C. on January 6th. Shroyer cannot light a fire near a can of gasoline, and then express concern or disbelief when it explodes,” prosecutors wrote in a sentencing memorandum.

In November 2020, Shroyer implied that there would be violence in D.C. if Joe Biden became president. Shroyer then used his show to advance conspiracy theories about the Capitol riot, claiming left-wing “antifa” activists and the FBI were to blame for the violence.

Shroyer was sentenced to two months in prison.

The government waived its right to respond to Shroyer’s petition at the court but defended its recommendation. Prosecutors said there was no constitutional bar against admitting evidence of First Amendment-protected speech at sentencing. The government argued that courts can use a defendant’s beliefs in sentencing decisions if they are relevant to the charges.

In the coming weeks, the Supreme Court will rule on a Jan. 6 appeal questioning the use of felony obstruction charges and Trump’s presidential immunity claim for election subversion charges.

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