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In court, the Proud Boys got a painful civics lesson they won’t soon forget

A federal judge rejected claims made by Proud Boy leaders that the violence at the U.S. Capitol was protected by the First Amendment.

A federal judge on Tuesday refused to dismiss a case against leaders of the Proud Boys extremist group, rejecting members’ claim their alleged participation in the Jan. 6 insurrection attempt was protected by the First Amendment. 

Proud Boys leaders Ethan Nordean, Joseph Biggs, Charles Donohoe and Zachary Rehl all tried to have the Department of Justice’s federal case against them tossed on freedom of speech grounds — and U.S. District Judge Timothy Kelly wasn’t feeling it. 

“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. “Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests.”

He allowed the most serious charge against the group members — obstruction of a federal proceeding — to continue, as well. The charge has been used against other defendants accused of participating in the Jan. 6 attack, and it carries a maximum 20-year sentence.  

Kelly’s Tuesday opinion read like the world’s easiest civics lesson, clarifying that violent insurrections are, in fact, not protected speech. And he explained why any such claim went out of the window when the event turned violent. 

“Even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had,” he said.  

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.

U.S. District Judge Timothy Kelly

Extremist groups and their leaders who allegedly helped organize the violent attack on the Capitol have faced increasing pressure from criminal and civil cases. Similar to Tuesday’s ruling, a federal judge declined last week to toss out federal obstruction charges against members of the Oath Keepers, another extremist group that videos show participated in the insurrection. 

Both extremist groups are defendants in a civil suit filed by the Washington, D.C., attorney general over damages related to the deadly attack.

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