Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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On December 28, 2021, Justice Timothy J Kelly of the United States District Court of Columbia denied the motion of the defendants which challenged the First Superseding Indictment. The First Superseding Indictment had charged the defendants of conspiring “to stop, delay, or hinder Congress’s certification of the Electoral College vote,” in violation of 18 U.S.C. § 1512(c)(2), and “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol,” in violation of 18 U.S.C. § 231(a)(3) for their acts of January 6, 2021. The defendants had argued that these provisions infringed their First Amendment rights, however, the court held that the “corrupt” acts did not fall within the ambit of speech and reiterated that, “when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms”.
On January 6, 2021, the defendants, conspired “to stop, delay, or hinder Congress’s certification of the Electoral College vote,” in violation of 18 U.S.C. § 1512(c)(2), and “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol and its occupants from those who had unlawfully advanced onto Capitol grounds,” in violation of 18 U.S.C. § 231(a)(3) according to the First Superseding Indictment, which a grand jury returned in March 2021 [p. 2].
On January 6, the defendants, Ethan Nordean, Joseph R. Biggs, Zachary Rehl, and Charles Donohoe, along with other protestors disrupted the proceedings at the Capitol by dismantling police barricades and assaulted the police force by making an unauthorised entry into the building and damaging windows and doors [p. 3 & 6]. The defendants—who allegedly held leadership positions with the “Proud Boys” carried out this conspiracy by using websites, social media, and other electronic communications. While the police officials were restoring the peace, the defendants were allegedly celebrating the events of that day through communications on social media and in encrypted chat messages [p. 3 & 6].
The defendants also raised funds through a crowdfunding campaign to support travel and buy equipment for their visit to Washington, D.C. which included paramilitary gear and supplies including tactical vests, protective equipment, and radio equipment for the attack. They shared a link to this crowdsourcing campaign on their social media page and encouraged others to share it as well. They also shared a link to an online fundraiser with the name “Travel Expenses for upcoming Patriot Events” [page 6]. The defendants had also joined a specific encrypted messaging channel called “Boots on the Ground,” which was created for communications by Proud Boys members in Washington, D.C. to coordinate the attack [p. 4].
The First Superseding Indictment had charged the defendants of conspiring “to stop, delay, or hinder Congress’s certification of the Electoral College vote,” in violation of 18 U.S.C. § 1512(c)(2), and “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol,” in violation of 18 U.S.C. § 231(a)(3) for their acts of January 6, 2021.
The defendants moved to dismiss the First Superseding Indictment. They contended that the various statutes did not apply to their alleged conduct and that even if they did, the laws were unconstitutional as applied to them [p. 1].
Justice Timothy J Kelly of the United States District Court of Columbia presided over the case. The main issue for consideration was whether the application of 18 U.S.C. § 1512(c)(2) to the defendants violated their First Amendment rights [p. 28]. Section 1512(c) states that “Whoever corruptly— (1) alters destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
The judge, denied the defendants’ motion to dismiss for two reasons.
First, the judge examined whether the conduct of the defendants was protected by the First Amendment. The judge noted that the defendants “corruptly obstructed, influenced, and impeded an official proceeding, and aided and abetted others to do the same”, “unlawfully entered the Capitol grounds or the Capitol building to stop, delay, and hinder Congress’s certification of the Electoral College vote” and indulged in “trespass, depredation of property, and interference with law enforcement, all intended to obstruct Congress’s performance of its constitutional duties”. The acts, according to the judge, were not protected by the First Amendment [p. 28].
The judge placed reliance on various decisions including Grayned v. City of Rockford, (1972) 408 U.S. 104, 114 where the court held that, “where demonstrations turn violent, they lose their protected quality as expression under the First Amendment”; Cameron v. Johnson 390 (1968) U.S. 611, 617 where the court was of the opinion that, “government may punish physical obstruction”; Cox v. Louisiana (1965) 379 U.S. 536, 555, where the court opined that, “the First Amendment does not allow a group of demonstrators to insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations”; and the United States v. Gregg 26 F.3d 253, 267-68 (3d Cir. 2000), where the court noted that, “activities that injure, threaten, or obstruct are not protected by the First Amendment, whether or not such conduct communicates a message” [p. 29].
While highlighting the Supreme Court’s observations in United States v. O’Brien, (1968) 391 U.S. 367, 377, “when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms”, the judge in the present case noted that the Government was correct in protecting Congress’s ability to function without “corrupt” interference which was unrelated to the suppression of free expression [p. 30].
The court also observed that the state action was directed at the “corrupt” actions of the defendants and therefore, the statute did not curb free speech. According to the judge, the state action in the instant case might at most be considered an incidental limitation on First Amendment freedoms. The court relied on landmark cases such as United States v. Thompson (2d Cir. 1996) 76 F.3d 442, 452 where it was held that, “by targeting only such persuasion as is corrupt, Section 1512(b) does not proscribe lawful or constitutionally protected speech.” The judge was of the opinion that the defendants had the right to express their opinions about the 2020 presidential election and views about how Congress should perform its constitutional duties on January 6, without resorting to violent conduct [p. 30].
Second, the defendants contested the constitutionality of section 231(a)(3) and argued that it was vague and facially overbroad. Section 231(a)(3) prohibits “committing or attempting to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder.” To address this contention, the judge ruled that an overbroad challenge against a law or regulation usually succeeds only when the statute is specifically addressed to speech or to conduct necessarily associated with speech and when there was a realistic danger that the statute itself will significantly compromise the right to expression. However, in the present case, the judge found that the words “any act” mentioned in the statute implied that the statute was directed towards conduct, not speech and therefore agreed with judgements passed in United States v. Howard No. (2021) 21-cr-28 (PP), WL 3856290, United States v. Wood (2021) No. 20-cv-56 (MN), WL 3048448 and United States v. Hoffman (1971) D.D.C. 334 F. Supp. 504, 509 which rejected first amendment challenge to the section 231(a)(3).
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The judge reiterated that when speech and non-speech elements were combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element could justify incidental limitations on First Amendment freedoms. By ruling that the violent acts intended “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol,” were not covered under First Amendment protection, the court didn’t contract freedom of expression.
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