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A federal judge is not buying the First Amendment argument that the Proud Boys are spinning in an attempt to evade criminal punishment for their alleged participation in the attack on the U.S. Capitol. U.S. District JudgeTimothy Kellyon Tuesday refused to throw out charges against four members of the far-right groupEthan Nordean,Joseph Biggs,Zachary Rehl, andCharles Donohoewho wereindicted in Marchon riot-related offenses, including conspiracy and obstructing an official proceeding. (All have pleaded not guilty.) Lawyers for the four men had sought to dismiss the charges by arguing, among other things, that the conduct they have been accused of engaging in is protected by the First Amendment right to free speech. But Kelly, an appointee of former presidentDonald Trump, argued thats not how that protection works.

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, wrote in Tuesdays43-page opinion. That conduct includes trespassing, destruction of property, and interference with law enforcement,perBloomberg. 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. Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.

The four leaders of the Proud Boys are not the only riot defendantsthat the U.S. government has chargedwith obstructing an official proceeding. Prosecutors have relied on the statutewhich carries a maximum imprisonment of 20 yearsto charge hundreds of people involved in theJanuary 6 riot, many of whom have challenged its legality in court,accordingto CNN. Kelly on Tuesday became the fourth D.C. District Court judge toallowprosecutors use of the law to stand, writing that the Court is not persuaded by defendants claim that Congress certification of the Electoral College vote was not an official proceeding. The Proud Boys case is one of the most serious conspiracy cases against Capitol riot defendants, and Kelly siding with the Justice Department gives momentum to prosecutors as they prepare for the first wave of U.S. Capitol riot-related trials beginning in February, CNN notes.

The governments win comes a week after two members of a different right-wing group, the Oath Keepers, tried and failed to get JudgeAmit Mehta,also presidingin D.C.s federal court, to throw out the obstruction charge against them in another pivotal January 6 case. In that case, the defendants were alsounsuccessfulin arguing that Congresss certification of the electoral results was not an official proceeding and that their alleged activities were protected free speech.

As prosecutors win support for their use of the obstruction charge against January 6 defendants, Representative Liz Cheney(R-Wyo.) hasraised the prospectofDonald Trump himself facing possibleobstruction chargesdepending on what new evidence the panel finds. Cheney, the vice-chair of the House committee investigating the insurrection,referencedthe criminal statute earlier this month at a House panel hearing where she pushed forMark Meadows, Trumps last White House chief of staff, to be held in contempt for refusing to cooperate. (The Houseeventually did hold him in contempt.) Meadowss testimony, Cheney said, will bear on a key question in front of this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congresss official proceeding to count electoral votes?

Meanwhile, the panel has beenramping up in recent days and is potentially turning to other members of Trumps inner circle, such asRudy Giuliani, to gain more insight into Trumps involvement in the insurrection.

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Judge to Proud Boys: No, Violently Storming the Capitol Isnt a First Amendment Exercise - Vanity Fair