A federal judge on Wednesday found that the “selective prosecution” of far-right groups without charging their far-left counterparts for the same acts is “constitutionally impermissible.”
U.S. District Court Judge Cormac Carney of southern California therefore dismissed charges against two men from the “white nationalist” Rise Above Movement (RAM) who violently clashed with members of the far-left group Antifa at three southern California pro-Trump events in 2017.
In his 35-page order, the judge stressed the importance of equal protection under the law. He said that although the two men may have been involved in violent acts, prosecutors were wrong to exclusively target them without also pursuing charges against Antifa members implicated in similar violent actions at political events.
“Such selective prosecution leaves the troubling impression that the government believes speech on the left more deserving of protection than speech on the right,” Judge Carney wrote (pdf).
The judge said that the fundamental principles of the First Amendment rights to free speech and to assemble are the “bedrock” of the United States. This is not always easy, he added, noting that sometimes, people use that right to “spread vitriolic and hateful ideas and beliefs.”
“While Defendants openly promoted ideas the Court finds reprehensible, and likely committed violence for which they deserve to be prosecuted, this case is about something more important. It is about upholding the free speech and assembly rights guaranteed to all of us,” Judge Carney wrote.
“It does not matter who you are or what you say. It does not matter whether you are a supporter of All Lives Matter or a supporter of Black Lives Matter,” he continued. “It does not matter whether you are a Zionist professor or part of Students for Justice in Palestine. It does not matter whether you are a member of RAM or Antifa. All are the same under the Constitution, and all receive its protections.”
Anti-Riot Act Charges
The alleged violence at the heart of the case happened during former President Donald Trump’s first year in the White House, during the four months spanning from March to June 2017.
Prosecutors charged the two men, Robert Rundo, the founder of RAM, and Robert Boman, one of the group’s members, under a federal anti-riot statute in 2018.
The men were accused of engaging in acts of violence at pro-Trump events in southern California, specifically in Huntington Beach, Berkeley, and San Bernardino.
Judge Carney dismissed their charges in 2019 but following an appeal, the charges were reinstated in 2021.
With the matter back in the district court, Mr. Rundo and Mr. Boman filed two motions to dismiss the case, arguing that the use of the Anti-Riot Act was unconstitutionally vague and that they were selectively prosecuted and not given equal treatment under the law.
Judge Carney rejected the first motion, asserting that the alleged conduct of the men clearly falls within the scope of the Anti-Riot Act.
“Though there may be questions in another case as to what constitutes a violation of the Anti-Riot Act, this is not that case,” he wrote. “Defendants clearly used a facility of interstate commerce shortly before they engaged in riotous activity as proscribed by the Anti-Riot Act.”
However, the judge agreed with their second motion’s argument regarding selective prosecution and the violation of equal protection rights. He raised constitutional concerns about the government’s use of the Anti-Riot Act to prosecute the RAM members but not the Antifa members, who engaged in comparable violent acts.
Mr. Rundo and Mr. Boman argued in their motion that the U.S. government targeted them for their speech and beliefs—and not Antifa and other far-left groups—in violation of their Fifth Amendment rights to equal protection and due process.
The judge found that the defendants met the high bar of proving that their Fifth Amendment rights were violated.
The left-leaning Anti-Defamation League, a self-described “anti-hate” organization, alleges that RAM is a “white supremacist group” made up of members who believe they’re fighting against a “modern world” that has become corrupted by “destructive cultural influences.” It says that RAM embraces a “conservative counterculture” that includes traditional Christian values, and they see themselves as “patriotic crusaders who are fighting against ‘communist’ forces.”
‘Constitutionally Impermissible’
In his order, the judge noted that while the RAM members may have committed violence at political rallies with the intent to shut down the speech of far-left groups, they provided “considerable evidence” that Antifa did the same, “if not worse,” at those same events.
“Members of Antifa and related far-left groups attended the political rallies and physically assaulted and injured innocent civilians, many of whom were supporters of President Trump and were peacefully exercising their First Amendment rights. Nonetheless, the government did not use the Anti-Riot Act to prosecute any members of Antifa or related far-left groups,” the judge wrote.
The judge noted that Antifa and other far-left groups engaged in “worse conduct” than RAM members and even “instigated much of the violence” that broke out in order to silence the protected speech of Trump supporters. Yet, the government chose not to prosecute Antifa members for the same violent acts alleged against the defendants.
“That is constitutionally impermissible,” Judge Carney wrote. “The government cannot prosecute RAM members such as Defendants while ignoring the violence of members of Antifa and related far-left groups because RAM engaged in what the government and many believe is more offensive speech.”
In his order, the judge highlighted the complexity of protecting free speech, which some may not like during divisive times. He argued that the solution is not for the government to “single out and punish the speech that it and many in the country understandably find repugnant.”
He referenced the historical legal perspective of Supreme Court Justice Louis Brandeis, who asserted nearly 100 years ago that combating dangerous speech requires “more speech, not enforced silence.”
“The government remains free to prosecute those, like Defendants, who allegedly use violence to suppress First Amendment rights. But it cannot ignore others, equally culpable, because Defendants’ speech and beliefs are more offensive. The Constitution forbids such selective prosecution,” Judge Carney wrote.
