A California federal court bars feds from prosecuting white supremacists while ignoring Antifa.

 

In 2017, Antifa and its anarcho-Marxist allies and a few small white supremacist groups engaged in violent activity at political rallies. However, the Department of Justice prosecuted only the white supremacists under the Anti-Riot Act of 1968. A federal court has finally called foul on this unconstitutional government bias.

The decision, by Judge Cormac J. Carney (a George W. Bush nominee), is in United States of America v. Rundo et al. The defendants, both self-avowed white supremacists, moved to dismiss the charges against them under the Anti-Riot Act because the government violated the equal protection clause when it failed to prosecute anarcho-Marxists for identical activity. Judge Carney concluded that the defendants were correct: The federal government selectively prosecuted the defendants based on favored versus disfavored ideas, which is unconstitutional.

Congress explicitly passed the Anti-Riot Act to stop violent Vietnam War and Civil Rights activities, blaming communists and lawless “negroes” for the unrest in America. Just a year after the act’s passage, though, the Supreme Court decided Brandenburg v. Ohio, which made clear that, no matter how unpleasant political speech may be, the government may not criminalize it if there is no imminent likelihood of violence or criminal acts. Since then, Judge Carney explained, “[I]t is unsurprising that the Anti-Riot Act, though rarely used, has been repeatedly challenged on First Amendment and other constitutional grounds.”

Image: An Antifa member attacking a Trump supporter with a skateboard. (An exhibit to the decision dismissing US v. Rundo.)

In Rundo, the facts before the court were clear: In 2017, anarcho-Marxist groups turned up at Trump rallies to silence Trump supporters and other conservatives, and the defendants’ white supremacist groups appeared at the same rallies to counter the anarcho-Marxists. All of them attacked people using weapons (knives, pepper spray, eggs, etc.), as well as feet and fists. Their conduct was violent and, on its face, constituted illegal assault. However, when it came time to press charges under the Anti-Riot Act, the Justice Department completely ignored the anarcho-Marxist aggressors and charged only the white supremacists.

It was this one-sided prosecution for identical activity that led to the motion at issue here. (The defendants also alleged that the statute was impermissibly vague, but they lost on that ground, an analysis that isn’t relevant here.) Judge Carney summed up the pertinent argument this way:

In short, Defendants argue that the government chose to charge only Defendants for their conduct at political rallies even though Antifa and related far-left groups engaged in identical, if not worse, misconduct at those same political rallies. … The reason for this disparity, according to Defendants, is that the government targeted them for their far-right and white supremacist speech.

As noted, the record showed that the defendants accurately asserted that Antifa and its allies engaged in equal or even worse violence.

Judge Carney acknowledged that “prosecutorial discretion” recognizes that, because prosecutors cannot prosecute all crimes, they have discretion about the cases they bring. However, he quoted other federal cases to the effect that “prosecutorial discretion is not unfettered,” but is “subject to constitutional constraints.” If there’s wrongful “selective prosecution,” the case “will be dismissed.” The standard for dismissal is “discriminatory effect and discriminatory purpose.” These elements can be proven by showing that similarly situated people escaped prosecution, with the disparity arising from “an impermissible motive.”

Here, said Judge Carney, “Defendants have established selective prosecution. There is no doubt that the government did not prosecute similarly situated individuals.” The big question, then, was whether that selective prosecution arose because the government was making decisions about favored and disfavored speech and beliefs. And again, defendants made their case. The judge noted that, tellingly, the federal government never did explain why Antifa and its fellow travelers did not get the Anti-Riot Act treatment. Therefore, he dismissed the indictment.

The heart of Judge Carney’s decision comes in the introduction:

Protecting First Amendment rights, however, is not always easy. People sometimes use their First Amendment rights to spread vitriolic and hateful ideas and beliefs. The struggle of preserving the First Amendment in the face of speech many find outright dangerous is pronounced during times of uncertainty, division, polarization, and fear—challenges we unfortunately face today. But the answer cannot be for the government to single out and punish the speech that it and many in the country understandably find repugnant.

[snip]

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. 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. 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. It is those protections that will ensure our democracy endures. We must never abandon any of them.

Conservatives often complain that, in 21st-century America, the notion of equal justice under the law is dead. Instead, the rule of law is used as a political tool to cow the Democrat party’s opponents. Think of the feds relentlessly persecuting every ordinary American who dared set foot on Capitol grounds on January 6 while routinely dismissing violent leftists who besieged the White House, invaded the Senate building, tried to set fire to federal buildings, and brutally attacked conservative citizens and law enforcement officers across America. More specifically, look at the lawfare against Donald Trump.

Perhaps Judge Carney is the one principled judge remaining in a sea of leftist judicial corruption. Alternatively, if the Ninth Circuit affirms the decision, we’re witnessing an ideological sea change as even those people sympathetic to the Democrat party realize that its principles are threatening to turn America into a broken tin-pot tyranny unless the Democrats themselves put the brakes on.

Incidentally, as noted, the DOJ is appealing the decision. By the time the appeal is done, which will probably be sometime in 2025, the defendants will have been caught in the Justice Department’s web for seven or eight years. It is a reminder that the process is the punishment and that justice delayed is justice denied.

If you experience technical problems, please write to helpdesk@americanthinker.com