U.S. District Judge Timothy Kelly on Tuesday rejected defense 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.
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 Jan. 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.
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