A federal judge this week cited the First Amendment in tossing criminal charges against three members of a neo-Nazi organization accused of conspiring to assault their ideological opponents, handing the government another defeat in its struggle to curtail white supremacist violence.
Robert Rundo, Robert Boman and Aaron Eason, all members of the violent white nationalist group Rise Above Movement (RAM), were charged last year under the federal Anti-Riot Act in connection with their actions at political rallies across California in 2017.
Prosecutors alleged that the men conspired to assault opposing protesters at political rallies in Huntington Beach and San Bernardino and on the campus at the University of California, Berkeley. The men sometimes taped their hands and wore skull masks allegedly in preparation for violent encounters. Video evidence showed them punching and kicking protesters. Rundo, one of the group’s founders, even punched a police officer twice in the head.
An FBI affidavit accused the men of using social media to “prepare to incite and participate in violence.” The men, according to the criminal complaint, “publicly documented their assaults in order to recruit” other white men to join RAM.
But on Monday, U.S. District Judge Cormac Carney found the Anti-Riot Act of 1968 to be “unconstitutionally overbroad,” writing in his order dismissing the indictment that the law had a “chilling effect” on free speech. Instead of focusing on criminalizing “acts and imminent threats of violence,” he wrote, the Anti-Riot Act “focuses on pre-riot communications and actions” and “sweeps in a wide swath” of protected activity.
“Although some alleged overt acts create no First Amendment problem, the Indictment also contains a substantial amount of protected expressive activity,” the judge wrote. “It charges the Defendants with making social media posts months before ― and months after ― any political rallies. Some posts express repugnant, hateful ideas. Other posts advocate the use of violence. Most, if not all, are protected speech.”
Two of the defendants, Rundo and Boman, were still in federal custody before the judge’s ruling and were released on Monday after the cases were dismissed, according to one of the taxpayer-funded lawyers representing them. A fourth RAM member, Tyler Laube, had pleaded guilty last year to a single conspiracy-to-riot charge, but that charge could also be dismissed if he enters a similar motion.
Carney wrote that prosecutors had a number of laws available to protect the public from violence, including California anti-rioting statutes and laws against assault, as well as federal laws on assault, civil disorder, conspiracy to “injure, oppress, threaten, or intimidate” a person exercising their constitutional rights, hate crimes, and conspiracy to interfere with civil rights.
“Make no mistake that it is reprehensible to throw punches in the name of teaching Antifa some lesson,” Carney wrote, referring to anti-fascist groups. “Nor does the Court condone RAM’s hateful and toxic ideology. But the government has sufficient means at its disposal to prevent and punish such behavior without sacrificing the First Amendment.”
A spokesman for the U.S. Attorney’s Office in Los Angeles told reporters that federal prosecutors were “disappointed in the court’s ruling and we are reviewing possible grounds for appeal.”
Some posts express repugnant, hateful ideas. Other posts advocate the use of violence. Most, if not all, are protected speech. U.S. District Judge Cormac Carney
Attorneys for the defendants had argued that the federal government shouldn’t be prosecuting conduct that “amounts to ― at worst ― a state law assault offense” and that bringing federal charges against members of a group that “espouses unsavory political views” should give the court “significant pause.”
“The contours of the [Anti-Riot] Act are poorly defined. It sweeps in a wide array of speech and assembly protected under the First Amendment, and fails to adequately notify the public and law enforcement about what conduct is prohibited and whose conduct can be prosecuted,” the defense argued. “Because the Act requires that citizens, law enforcement, judges, and juries guess what conduct is and is not prohibited, the statute is unconstitutionally vague.”
John Neil McNicholas, an attorney for Eason, told HuffPost that Congress “felt like it had to do something to stop the violence” when it passed the law in 1968 amid civil rights and Vietnam War protests, but that lawmakers didn’t narrowly tailor the law as they should have.
“It’s not necessarily the mainstream that requires the protection of the First Amendment, but it’s those fringe groups, the groups considered on the extreme,” said McNicholas.
“You want to stop people from organizing riots, but sometimes riots break out and it has nothing to do with the targets,” he said.
“I believe this decision is good for everyone, because our ability to assemble, our ability to communicate, our ability to go on the internet and state our beliefs, it’s very private, it’s very personal. And laws like this have a chilling effect on our ability to do that,” McNicholas said.
Prosecutions That Don’t Really Win
The case against the Rise Above Movement, which was investigated by an FBI agent who specializes in domestic terrorist groups, illustrates the difficulty that federal authorities face in prosecuting domestic extremists. There’s no federal law that broadly outlaws acts of domestic terrorism, though a large majority of Americans think there should be such a law. Federal authorities have more laws they can use against designated international terrorist groups, like the Islamic State, than they do against violent white supremacists at home.
Roughly half of the potential domestic terrorist attacks “disrupted” by the FBI end in arrests on state or local charges — and the charges that are brought federally often don’t match the magnitude of the alleged crime. The feds said last year that a “domestic terrorist” was planning to “murder innocent civilians on a scale rarely seen in this country,” but only brought gun and drug charges. (A federal magistrate judge even granted the individual bail before being overruled by a higher ranking judge.)
A white supremacist the feds said discussed a terrorist attack with his cousin faced only a charge of lying to the FBI and recently reached a plea deal that will likely result in a sentence of time served.
Another white supremacist who bought a gun from an undercover FBI agent as he plotted an attack in the “spirit of Dylann Roof” received just three years, a sentence much shorter than he likely would have faced if he’d been a supporter of a militant Islamist group. (Roof committed an act of domestic terrorism when he slaughtered nine black churchgoers in Charleston, South Carolina, but he also didn’t face a terrorism-related charge.)
And federal prosecutors also failed to secure convictions against several anti-government militia members involved in the armed occupation of the Malheur National Wildlife Refuge in Oregon.
The dismissal of the indictment against RAM members before trial also offers a stark contrast to how hundreds of cases against the so-called J20 protesters played out. Justice Department prosecutors, through the U.S. Attorney’s Office for the District of Columbia (which prosecutes both local and state crimes in the nation’s capital), charged more than 200 people arrested during President Donald Trump’s inauguration with felonies. Several of the cases went to trial, but jurors acquitted the vast majority of defendants, most of whom the government conceded didn’t engage in any actual destruction of property, on all charges (while deadlocking on two cases).
Justice Department prosecutors eventually dropped the charges against all the J20 defendants, having secured just a single felony guilty plea in one case.
A Civil Rights Group For Extremists
In addition to their taxpayer-funded defense teams, members of RAM had a bit of outside legal assistance. On May 8, a largely unknown organization called the Free Expression Foundation (FEF) filed an amicus curiae, or friend-of-the-court, brief, arguing that the charges against the four men should be dismissed.
Federal prosecutors then filed a motion to keep the organization from inserting itself into the case. “FEF is a friend of the defendants, not a friend of the Court, and its proposed brief offers no ‘unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide,’” they wrote. But the judge allowed FEF to enter its brief, which argued that the Anti-Riot Act had the “effect of denying First Amendment protections to marginal groups most in need of them.”
FEF describes itself on its website as a nonprofit aimed at “providing moral, legal, and financial support” to “victims of the potent social forces that have chosen the un-American path of monitoring, intimidation, and destruction.”
A cursory online investigation of FEF reveals that it has deep ties to white nationalist groups.
The FEF website lists Paul Angel as its president and board chairman. It also describes Angel as art and production director and assistant marketing manager for American Free Press, a deeply anti-Semitic, white nationalist publication. Another white nationalist website called the Barnes Review, which traffics in Holocaust denialism, lists Angel as its executive editor.
FEF’s secretary is Merlin Miller, who once ran a long-shot campaign for president as a member of the white nationalist American Freedom Party. Miller has made blatantly anti-Semitic comments, once arguing that Hollywood is under “Jewish-Zionist control.”
FEF didn’t immediately respond to a HuffPost request for comment on its involvement in the RAM case in California. But its website notes that it offered legal advice to the “Charlottesville 4,” referring to four other RAM members or associates who pleaded guilty to federal riot charges related to violence at the deadly 2017 Unite The Right rally in Charlottesville, Virginia.
Andrew Allen, a California-based lawyer who represented FEF in the amicus brief, told HuffPost that he went to the University of California, Berkeley in the late 1960s and has always been interested in the Anti-Riot Act. “It’s a very bad law, and I’m very happy the judge thought so too,” he said.
However, Allen said he wasn’t familiar with FEF before getting a call from them about the case. “The guy called me up,” he said. “I don’t think they’ve done much before this.”
He said FEF provided the introduction to his amicus brief, which described the organization as a “fledgling” nonprofit “dedicated to providing legal support for persons that have suffered legal, financial, or social harm as a result of the exercise or attempted exercise of their rights of free expression.”
He’d brought prior cases that may have drawn the group’s attention, Allen said, and he wasn’t particularly worried about its associations.
“I’m not concerned about that. I’m concerned more about this going up on appeal because that’s the next step,” he said. “This is my shot at maybe doing something in front of the Supreme Court before I retire. I’m kind of excited by it.”
According to Allen, the federal public defender and other court-provided lawyers deserved much of the credit for their work in getting the case dismissed. “Obviously it’s a very daring move on their part. I think they did a great job,” he said.
Allen called on other civil rights groups to get involved in the case as it makes its way through the courts. “I don’t know why the ACLU didn’t get involved here. Maybe they will now,” he said.
“If you know anyone who defends the First Amendment … this is their ticket for First Amendment glory,” Allen told HuffPost.