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Federal Judge Rejects Proud Boys’ “Free Speech” Defense in January 6 Court Case

“This alleged conduct is simply not protected by the First Amendment,” U.S. District Judge Timothy Kelly said.

Members of the Proud Boys join Donald Trump supporters as they protest the election outside the Colorado State Capitol on January 6, 2021, in Denver, Colorado.

A federal judge has dismissed an attempt by members of the Proud Boys to dismiss charges relating to their involvement in the breach of the United States Capitol building on January 6.

Four members of the far right organization — Ethan Nordean, Joseph Biggs, Zachary Rehl and Charles Donohoe — have been indicted with multiple charges, including conspiracy to attack the Capitol and obstruction of an official proceeding of Congress, which had convened to certify the Electoral College results of the 2020 election. Lawyers for the defendants sought to have those charges dismissed on the basis of free speech rights.

U.S. District Judge Timothy Kelly issued a 43-page ruling on Tuesday rejecting that motion.

“No matter Defendants’ political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment,” Kelly wrote in his opinion.

While some actions that are not strictly speech are protected by the Constitution, those taken by the four Proud Boys are not, Kelly said.

“Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests,” the judge wrote. “Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had” when they engaged in violent conduct, Kelly added.

Defense lawyers also tried to argue that the case should be dismissed because, in their view, the certification of the 2020 presidential election happening that day wasn’t an “official proceeding — an argument based on a distorted definition of those words, according to Kelly in his ruling,

The Proud Boys, a far right militant group with a notably violent and racist history, have led a number of assaults on left-leaning activists. Days before the Capitol attack, the leader of the Proud Boys, Enrique Tarrio, was arrested on charges relating to the burning of a Black Lives Matter banner at a historically Black church in Washington, D.C.

Trump refused to condemn the Proud Boys during the 2020 presidential debates, instead telling them to “stand back and stand by,” which the group interpreted as an endorsement.

The trial for the four Proud Boys members is set to begin in May 2022. All four individuals will remain in jail until the trial commences.