Federal Court Tells Proud Boys Defendants That Raiding The Capitol Building Isn't Covered By The First Amendment

Legal Issues

from the this-is-just-free-speech,-they-said,-breaking-windows-and-trampling-cops dept

A handful of Proud Boys members charged with crimes related to the January 6th raid on the Capitol building are arguing their actions are protected by the First Amendment. According to the defendants, the raid they participated in was nothing more than a protest. Alternatively, they’re arguing one of the laws being used against them is unconstitutionally overbroad, turning otherwise legal activity into illegal activity.

Unfortunately for these would-be insurrectionists, the DC federal court doesn’t find any of their arguments sympathetic. (via Courthouse News Service)

This is the law the Proud Boys members are challenging, as related in the recitation of the indictment by the DC court [PDF]:

The First Superseding Indictment alleges that Defendants helped plan and orchestrate the events of January 6. Count One charges them with conspiracy under 18 U.S.C. § 371. Defendants allegedly conspired “to stop, delay, or hinder Congress’s certification of the Electoral College vote,” in violation of 18 U.S.C. § 1512(c)(2), and “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol and its occupants from those who had unlawfully advanced onto Capitol grounds,” in violation of 18 U.S.C. § 231(a)(3).

Defendants—who allegedly held leadership positions or planning roles with the “Proud Boys” organization—purportedly carried out this conspiracy by, among other things, encouraging other Proud Boys to attend the protest on January 6; “[u]sing websites, social media, and other electronic communications to raise funds to support travel and equipment purchases for the visit to Washington, D.C.”; “[o]btaining paramilitary gear and supplies—including tactical vests, protective equipment, and radio equipment—for the January 6 attack”; “[s]cheming to evade detection by law enforcement by dressing ‘incognito’ rather than wearing Proud Boys colors”; traveling to Washington, D.C., “prior to the attack”; using “programmable handheld radios, encrypted messaging applications, and other communications equipment to communicate and coordinate the January 6 attack”; “[d]ismantling” police barricades, and “[s]torming past” those barricades and law enforcement officers “in efforts to disrupt the proceedings at the Capitol”; and obtaining “entry into the Capitol building as a result of damage to windows and doors that otherwise would have precluded entry.”

Then there are the more overt acts, which turned the conspiracy into a reality. These included acquiring gear, mobilizing Proud Boys members, leading a group of Proud Boys into the Capitol building, using a riot shield to break a window to allow others to access the building, recording videos while inside the Capitol building, and spending the rest of the day celebrating their illegal actions via social media platforms and encrypted messaging services.

Here’s the main argument the Proud Boy defendants offered in their motion to dismiss the indictment:

According to Defendants, Section 1512(c)(2) does not apply here because Congress’s certification was not an “official proceeding,” and the phrase “otherwise obstructs, influences, or impedes” is limited to conduct like the destruction or alteration of documents and other records. In addition, if the statute is not read as they propose, Defendants argue that it is vague as applied; contravenes the rule of lenity; conflicts with the novel-construction principle; and violates the First Amendment.

Here’s the court’s short take before it goes on to explain why:

None of these arguments succeeds.

Here’s why:

[E]ven if an “official proceeding” had to be quasi-adjudicative or quasi-judicial in some way—a requirement missing from the plain text of the statute—because Congress’s certification of the Electoral College vote has some of those features, it would pass the test. As explained above, it is a formal process. […] In addition, the Vice President, as President of the Senate, serves as “presiding officer” while the votes cast by Electors are counted. 3 U.S.C. § 15. As in a court of law, members of Congress may object, which in turn causes the Senate and House of Representatives to separately consider and render their separate “decision[s]” on the objection.” Further, after the count is finished, the certification must end with a “result declared.”

The rest of the arguments fail as well. And here’s what the court has to say about the statute as applied to the Proud Boys’ alleged actions, which the defendants argue allows the government to punish them for engaging in protected speech. The court says the Proud Boys have no argument worth considering.

The Court first turns to the threshold question of whether the conduct with which Defendants are charged is protected by the First Amendment at all. […] It is not. Defendants are alleged to have “corruptly” obstructed, influenced, and impeded an official proceeding, and aided and abetted others to do the same—that is, they allegedly “unlawfully entered the Capitol grounds or the Capitol building to . . . stop, delay, and hinder Congress’s certification of the Electoral College vote,” and succeeded in doing so. And more specifically, they are charged with conduct involving acts of trespass, depredation of property, and interference with law enforcement, all intended to obstruct Congress’s performance of its constitutional duties. No matter Defendants’ political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment.

Perhaps some of their activities on January 6 may have been covered by the First Amendment, but the actions they’re being charged for are not.

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

The Proud Boys had plenty of available options to express their displeasure with the outcome of the 2020 election — options fully protected by the First Amendment. Instead, they chose to violate a handful of laws.

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.

The motion is denied. The Proud Boy defendants will continue to face charges for their coordinated raid on the Capitol. It may be that some of these charges fail to stick, but what’s been alleged isn’t covered by the First Amendment, something the defendants surely knew when they decided they could somehow reverse history by shutting down the certification of the presidential election results.

Filed Under: 1st amendment, capitol, insurrection, protests, proud boys, raiding the capitol