U.S. District Judge Timothy Kelly rejected Tuesday's defense arguments that the men charged -- Ethan Nordean and Joseph Biggs as well as Zachary Rehl, Zachary Rehl, and Charles Donohoe - are guilty of conduct that is protected under the First Amendment.
Kelly stated that the defendants could express their views about the 2020 presidential election in a variety of nonviolent ways.
Kelly's 43-page ruling stated that defendants are not charged with burning flags, wearing black armbands or participating in protests. Kelly wrote that even though the accused conduct was expressive, it was not protected by the First Amendment.
In March, Nordean and Biggs were indicted on conspiracy and obstruction of an official proceeding. They are currently being held in jail while they await their May trial.
Kelly disagreed.
An earlier month, another District of Columbia federal judge upheld the use of the same obstruction charges in a separate case against two of the riot defendants.
Nordean's case against Biggs, Rehl, and Donohoe are the focal point of the Justice Department’s extensive investigation into the Jan. 6 insurrection. Federal authorities have identified more than 30 people who were charged in the Capitol siege as Proud Boys leaders or members, and at least 16 of them with conspiracy.
A New York man, Matthew Greene, pleaded guilty last Wednesday to storming the U.S. Capitol along with other Proud Boys members. Matthew Greene, a Proud Boys member, has publicly pleaded guilty to conspiring to prevent Congress from certifying that the Electoral College vote was valid. He cooperated with authorities.
Others from extremist groups were also charged with conspiring against coordinated attacks on Capitol Hill, including more than 20 people who were part of the antigovernment Oath Keepers.
Nordean, from Auburn, Washington was the president of the Proud Boys chapter and a member of its national "Elders Council." Biggs of Ormond Beach (Florida) is a self-described Proud Boys coordinator. Rehl was the president of Philadelphia's Proud Boys chapter. According to the indictment, Donohoe of Kernersville (North Carolina) also served as president for his local chapter.
Lawyers representing the men refused to comment on Tuesday’s decision.
Proud Boys members met at Washington Monument on Jan. 6 and marched to Capitol before President Donald Trump addressed thousands of supporters.
According to the indictment, Proud Boys accompanied a crowd of people to breach barriers at the Capitol's pedestrian entrance just before Congress convened to certify election results. After the mob broke windows and forced doors open, several Proud Boys entered the Capitol building.
Over 700 have been charged with federal offenses related to the Capitol Riot. At least 165 people have pleaded guilty to misdemeanor offenses that can lead to a maximum six-month sentence.
