“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.
“Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests,” Kelly added. “Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.”
Kelly also wrote: “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.”
Kelly, an appointee of former President Donald Trump, is now the fourth DC District Court judge to uphold prosecutors’ use of the law in the January 6 cases.
The ruling in the Proud Boys case is especially notable because it and a separate case against members of another right-wing group, the Oath Keepers, are two of the most prominent prosecutions related to January 6. (Judge Amit Mehta previously upheld prosecutors’ use of the obstruction charge in the Oath Keepers case.)
Members from both groups are charged with conspiracy. In this Proud Boys case, the four leaders are accused of working together to lead and outfit members of their group in a paramilitary-style, violent assault on the Capitol.