Judge says white supremacists charged over violent riots are protected by First Amendment

"The government has sufficient means at its disposal to prevent and punish such behavior without sacrificing the First Amendment."

Judge says white supremacists charged with inciting riots are protected by free speech
Judge says white supremacists charged with inciting riots are protected by free speech. (Photo credit: Chip Somodevilla/Getty Images)

A federal judge in Los Angeles on Monday threw out rioting charges against three members of the Rise Above Movement (RAM), a violent far-right group which participated in the August 2017 Unite the Right rally as well as other clashes throughout California.

The defendants had been charged with inciting riots under the Anti-Riot Act following a series of incidents at political rallies, most notably in April 2017 at the University of California Berkeley. Videos posted online showed the defendants at the event with fists taped for fighting and faces partially covered by skeleton masks.

Defense attorney John McNicholas, however, argued that the government’s charges were focused on the plans and conversations surrounding RAM’s trip to Berkeley — not the actual violence that occurred. As a result, the charges unfairly covered “lawful assembly and speech”, a point with which U.S. District Judge Cormac Carney agreed.

“Because the Anti-Riot Act regulates a substantial amount of protected speech and assembly, the Court finds the Anti-Riot Act is unconstitutionally overbroad,” Carney wrote in his 12-page decision. “The political nature of a riot increases the risk that the Anti-Riot Act criminalizes a substantial amount of protected expressive activity.”


“The court does [not] condone RAM’s hateful and toxic ideology,” Carney continued. “But the government has sufficient means at its disposal to prevent and punish such behavior without sacrificing the First Amendment.”

The judge urged defendants Robert Rundo, Aaron Eason and Robert Bowman to “move away from violence and hate.” The trio were released on Monday.

A spokesperson for the U.S. Attorney’s Office said that prosecutors were disappointed with the ruling and would be reviewing their options with regards to an appeal.

The RAM case is the latest example of the pitfalls that prosecutors face when attempting to prosecute far-right groups or domestic extremists. As ThinkProgress reported previously, homegrown extremist groups and individuals are granted wide protections under the First Amendment, which raises the bar for proving their extremism and violent ambitions.

An example of this is the case of Christopher Hasson, the Coast Guard lieutenant accused of stockpiling weapons and creating a “hit-list” of prominent liberal politicians and journalists. Despite describing Hasson as a “domestic terrorist” in the initial filing, prosecutors have yet to levy any specific terrorism charges against him. His defense attorney previously argued that prosecutors were attempting to punish him for “private thoughts” because he had not made any specific threats against individuals.


In April a magistrate ruled that Hasson could be released on bail before his trial — although that was later overruled on appeal.

Heidi Beirich, director of the Southern Poverty Law Center’s Intelligence Project, said that she hoped the dismissed charges against the RAM members wouldn’t cause federal prosecutors to back down from pursuing white supremacists or other far-right groups more broadly. Though the First Amendment creates some challenges for prosecutors, she said, the main problem is a lack of political will to go after far-right extremists.

“The implosion of [the so-called ‘alt-right’] and arrests of other RAM members has had a dampening effect,” Beirich told ThinkProgress. “Even so, this movement keeps producing terrorists so we can’t take our eyes off them.”

RAM formed in California in 2017 and describes itself as a mixed martial arts club for the far-right which aims to “promote an active lifestyle and common values among young people and a future for European people.”

The group is heavily influenced by older California skinhead groups, both in its focus on hand-to-hand combat training and association with the Hammerskin Nation, one of the United States’ largest skinhead groups.

Members of the group, including defendant Rundo, have also previously traveled to Europe where they’ve forged links with other far-right figures, including Olena Semenyaka, who is tied to the neo-Nazi group the Azov Battalion.