Unequal Prosecution of Far-Right and Antifa Deemed ‘Constitutionally Impermissible’ by Judge

In a recent ruling, U.S. District Court Judge Cormac Carney of Southern California declared that the unequal prosecution of far-right groups without charging far-left counterparts for the same actions is “constitutionally impermissible.”

This verdict led to the dismissal of charges against two men affiliated with the “white nationalist” Rise Above Movement (RAM) who were involved in violent altercations with Antifa, a far-left group, at three pro-Trump events in Southern California in 2017.

Judge Carney’s 35-page ruling emphasized the necessity of equal protection under the law. He noted that while the defendants may have participated in violent activities, it was improper for prosecutors to single them out without also bringing charges against Antifa members involved in similar violent incidents at political gatherings.

The judge asserted that the fundamental principles of First Amendment rights to free speech and to assemble are the “bedrock” of the United States. He acknowledged that these rights can sometimes be used to disseminate “vitriolic and hateful ideas and beliefs”. However, he stressed that this case transcends the alleged actions of the defendants. “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.

Robert Rundo, founder of RAM, and Robert Boman, a member of the group, were charged under a federal anti-riot statute in 2018 for their involvement in violent incidents at pro-Trump events in Southern California, specifically in Huntington Beach, Berkeley, and San Bernardino. While their charges were initially dismissed in 2019, they were reinstated in 2021 following an appeal.

Upon returning to the district court, Rundo and Boman filed two motions to dismiss the case, claiming that the Anti-Riot Act was unconstitutionally vague and that they were selectively prosecuted and not given equal treatment under the law. While the first motion was rejected by Judge Carney, he concurred with the second motion’s argument regarding selective prosecution and violation of equal protection rights.

Rundo and Boman contended that they were targeted by the U.S. government for their speech and beliefs, while Antifa and other far-left groups were not, in violation of their Fifth Amendment rights to equal protection and due process. In response, Judge Carney agreed that the defendants had successfully demonstrated that their Fifth Amendment rights had been violated.

The judge raised constitutional concerns about the government’s use of the Anti-Riot Act to prosecute RAM members but not Antifa members involved in comparable violent acts. He stated, “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.”

Judge Carney also noted that the actions of Antifa and other far-left groups were arguably more severe than those of the RAM members, and they often instigated violence to silence Trump supporters’ protected speech. Yet, they were not prosecuted for the same alleged violent acts. According to the judge, “That is constitutionally impermissible.”

In his order, Judge Carney underscored the challenge of protecting free speech, particularly during contentious times. He declared that the answer is not for the government to “single out and punish the speech that it and many in the country understandably find repugnant.” Instead, he invoked Supreme Court Justice Louis Brandeis’ nearly century-old wisdom that the remedy for harmful speech is “more speech, not enforced silence”. Thus, while the government has the right to prosecute those who allegedly use violence to suppress First Amendment rights, it cannot selectively target those whose speech and beliefs are deemed more offensive.