A federal judge refused to dismiss an indictment charging four alleged leaders of the far-right Proud Boys with conspiring to attack the US Capitol to stop Congress from certifying President Joe Biden's electoral victory.
US district judge Timothy Kelly on Tuesday rejected defence attorneys' arguments that the four men: Ethan Nordean, Joseph Biggs, Zachary Rehl and Charles Donohoe; are charged with conduct that is protected by the First Amendment right to free speech.
Kelly said the defendants had many nonviolent ways to express their opinions about the 2020 presidential election.
"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 in his 43-page ruling.
"Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had."
Nordean, Biggs, Rehl and Donohoe were indicted in March on charges including conspiracy and obstructing an official proceeding. All four of them remain jailed while they await a trial scheduled for May.
Defence lawyers also argued that the obstruction charge does not apply to their clients' cases because Congress' certification of the Electoral College vote was not an "official proceeding". Kelly disagreed.
Earlier this month, another judge in the District of Columbia's federal court upheld prosecutors' use of the same obstruction charge in a separate case against two riot defendants.
The case against Nordean, Biggs, Rehl and Donohoe is a focus of the Justice Department's sprawling investigation of the January 6 insurrection.
More than three dozen people charged in the Capitol siege have been identified by federal authorities as Proud Boys leaders, members or associates, including at least 16 defendants charged with conspiracy.
Last Wednesday, a New York man pleaded guilty to storming the US Capitol with fellow Proud Boys members. Matthew Greene is the first Proud Boys member to publicly plead guilty to conspiring with other members to stop Congress from certifying the Electoral College vote. He agreed to cooperate with authorities.
Other extremist group members have been charged with conspiring to carry out coordinated attacks on the Capitol, including more than 20 people linked to the anti-government Oath Keepers.
Nordean, of Auburn, Washington, was a Proud Boys chapter president and member of the group's national "Elders Council".
Biggs, of Ormond Beach, Florida, is a self-described Proud Boys organiser. Rehl was president of the Proud Boys chapter in Philadelphia.
Donohoe, of Kernersville, North Carolina, also served as president of his local chapter, according to the indictment.
Lawyers for the four men declined to comment on Tuesday's ruling.
On the morning of January 6, Proud Boys members met at the Washington Monument and marched to the Capitol before President Donald Trump finished addressing thousands of supporters near the White House.
Just before Congress convened a joint session to certify the election results, a group of Proud Boys followed a crowd of people who breached barriers at a pedestrian entrance to the Capitol grounds, the indictment says.
Several Proud Boys also entered the Capitol building itself after the mob smashed windows and forced open doors.
More than 700 people have been charged with federal crimes related to the Capitol riot. At least 165 of them have pleaded guilty, mostly to misdemeanour offenses punishable by a maximum of six months' imprisonment.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules here