U.S. District Judge Timothy Kelly ruled Tuesday against Ethan Nordean, Joseph Biggs, Zachary Rehl, and Charles Donohoe. They had sought the dismissal of the charges brought against them by the U.S. Department of Justice, claiming that the conduct with which they are charged is protected by the First Amendment of the Constitution as free speech. 

Prosecutors allege that Ethan Nordean and the others lead the far right group known as the “Proud Boys,” and that in that capacity they conspired to attack the U.S. Capitol on Jan. 6 in order to prevent the certification of the victory of Joseph Biden in the preceding year’s presidential election.

Kelly rejected that argument, in a 43-page opinion. Kelly said, referring to the types of political expression protected by certain well-known Supreme Court precedents: “Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests.” 

Kelly said that even if the behavior of Ethan Nordean, Joseph Biggs, et al “had some expressive aspect, it lost whatever First Amendment protection it may have had.”

Who Are the Defendants?

Nordean, of Auburn, Washington, was president of a chapter of the Proud Boys and on the group’s national “Elders Council.” Biggs, of Ormond Beach, Florida, describes himself as one of the Proud Boys’ organizers. Rehl, Philadelphia, Pennsylvania, was president of the Proud Boys chapter there. Donohoe is likewise a chapter president, of Kernersville, North Carolina, according to the federal indictment.

Ethan Nordean and the others all remain jailed awaiting a trial scheduled for May.

Another Proud Boys member, Matthew Greene, just last week became the first member of the group to plead guilty to conspiring with other members to interrupt the electoral college count and certification. Greene agreed to cooperate with authorities. 

There are more than three dozen people who are charged in connection with the Capitol riot who have been identified by authorities as Proud Boy members, sometimes as leaders. At least 16 of those have been charged with conspiracy.

There are other far right groups that were involved in the riot, including the Oath Keepers, to whom more than a score of the accused has been linked. But the Proud Boy connection has received a lot of attention, because the organization became a topic for discussion in a presidential debate last fall. Then President Donald Trump, asked if he would denounce the Proud Boys. He replied that he would say to them “stand back and stand by.”

The group describes itself as a male-only club of “Western chauvinists.” It said the West should “refuse to apologize for creating the modern world.” It has been targeted by advocates who monitor such far right extremists as misogynistic, anti-Muslim and anti-immigration rhetoric.

‘Let Them Remember the Day

Prior to Jan. 6, Ethan Nordean posted on social media messages that, according to the government, included an intention to engage in violent conflict that day. For example, on Dec. 27, 2020, he posted a message asking for donations of “protective gear” and “communications equipment.” On Jan. 4, 2021, he put up a video, captioned, “Let them remember the day they decided to make war with us.”

The Proud Boys of Washington State, where Ethan Nordean made his name, have been noteworthy for some time. The Southern Poverty Law Center has observed that “as early as summer 2018, a document circulated by Washington state law enforcement described the group’s involvement in a series of violent incidents in Oregon and Washington, as well as its involvement in Unite the Right.”

The founder of the Proud Boys, Gavin McInnes, has sought over a period to three years now to disassociate himself from group. He sees himself as merely a “provocateur” who does “satirical commentary.”