Judge Rejects Free Speech Argument, Refuses to Dismiss Indictment Against Four Proud Boys

A federal judge Tuesday refused to dismiss an indictment based on an argument from the attorneys for four men associated with the right-wing group the Proud Boys that their actions leading up to and on January 6 were protected under the freedom of speech rights in the First Amendment.

Ethan Nordean, Joseph Biggs, Zachary Rehl and Charles Donohoe were indicted in March and charged with conspiracy and obstructing an official proceeding, among other charges, and remain in jail leading up to their trial scheduled for May 2022.

U.S. District Judge Timothy Kelly said the four men had many other options that actually are protected under the First Amendment to protest the election and express their thoughts about its results in a nonviolent, legal manner.

"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 a 43-page ruling. "Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had."

At least three dozen of the over 700 people who have been charged in the insurrection at the Capitol building on January 6 have been identified as leaders or associates of the Proud Boys, the far-right organization that was one of many that organized events on the day that led to rioters breaking windows and forcing their way through doors into the Capitol, which ended with five people dead.

Proud Boys January 6, Freedom of Speech
Proud Boys members Joseph Biggs, left, and Ethan Nordean, right with megaphone, walk toward the U.S. Capitol in Washington on January 6, 2021. A federal judge on December 28, 2021, refused to dismiss an indictment charging four alleged leaders of the far-right Proud Boys, Ethan Nordean, Joseph Biggs, Zachary Rehl and Charles Donohoe, with conspiring to attack the U.S. Capitol to stop Congress from certifying President Joe Biden's electoral victory. Carolyn Kaster/Associated Press File

Defense lawyers also argued that the obstruction charge doesn't 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 U.S. 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 organizer. 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 Nordean and Donohoe declined to comment on Tuesday's ruling. Attorneys for Rehl and Biggs didn't immediately respond to emails seeking comment.

On the morning of Jan. 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 misdemeanor offenses punishable by a maximum of six months' imprisonment.

The Associated Press contributed to this report.

Proud Boys January 6, Freedom of Speech
Proud Boys members Zachary Rehl, left, and Ethan Nordean, left, walk toward the U.S. Capitol in Washington, in support of President Donald Trump on January 6, 2021. A federal judge on December 28, 2021, refused to dismiss an indictment charging four alleged leaders of the far-right Proud Boys, Ethan Nordean, Joseph Biggs, Zachary Rehl and Charles Donohoe, with conspiring to attack the U.S. Capitol to stop Congress from certifying President Joe Biden's electoral victory. Carolyn Kaster/Associated Press File