Supreme Court Rejects Appeal of Jan. 6 ‘Parading’ Conviction
The Supreme Court has declined to hear an appeal from John Nassif, a Florida man convicted for his role in the January 6, 2021, attack on the Capitol.
Nassif had contested the constitutionality of a law prohibiting “parading, picketing, and demonstrating” inside the Capitol, arguing it infringes on First Amendment rights to free speech and assembly. This charge is among the most frequently used against defendants from the January 6 events.
President-elect Donald Trump is reportedly considering pardons for many individuals involved in the Capitol riot.
After being convicted on multiple misdemeanor counts, including disorderly conduct and violent entry, the 57-year-old Nassif received a seven-month prison sentence. Prosecutors had initially recommended a 10- to 16-month term, according to the Washington Examiner.
Nassif’s public defenders argued that he entered the Capitol about an hour after the initial breach and stayed for less than 10 minutes, during which they claimed he engaged in “core First Amendment expression” that was “in no way disruptive.”
Lower courts, including the U.S. Court of Appeals for the D.C. Circuit, rejected Nassif’s First Amendment argument. The D.C. Circuit panel ruled that the Capitol buildings do not constitute a public forum open for protests, which allows the government to enforce reasonable, viewpoint-neutral restrictions to preserve order and security.
The panel stated, “Nassif has not established that the Capitol buildings are, by policy or practice, generally open for use by members of the public to voice whatever concerns they may have — much less to use for protests, pickets, or demonstrations.”
Nassif’s appeal pointed out a discrepancy between the D.C. Circuit and the D.C. Court of Appeals over whether the Capitol serves as a public forum. The D.C. Circuit categorizes Capitol buildings as nonpublic forums, which supports broader restrictions. In contrast, the D.C. Court of Appeals has classified certain areas, like the Capitol Rotunda, as public forums where restrictions on speech must be narrowly tailored.
Previously, U.S. District Judge John Bates upheld the parading charge against Nassif, citing established precedent that supports reasonable limits on First Amendment activities in the Capitol. The government maintains that such restrictions are essential for preventing disruptions to congressional proceedings and protecting the legislative process's security.
The Supreme Court’s decision not to review the case means the lower court's ruling remains in place, affirming the government’s authority to prosecute individuals under the parading statute. This decision has implications for more than 460 defendants charged with this same misdemeanor related to the January 6 events, according to the Department of Justice, making it the most commonly applied charge among over 1,450 prosecutions to date.
In a recent case, United States v. Fischer, the court limited the use of the obstruction statute, Section 1512(c)(2), which had been applied to over 120 defendants, raising the required burden of proof. Similarly, on November 1, U.S. District Judge Beryl Howell issued a ruling in United States v. DeCarlo, which set a higher standard for applying the obstruction charge, suggesting that the DOJ may face difficulties in successfully prosecuting this charge in remaining cases, as reported by the Examiner.
It is still unclear to what extent Trump plans to issue pardons for January 6 defendants or who might be on the list. Trump previously indicated, “I am inclined to pardon many of them. I can’t say for every single one because a couple of them, probably, they got out of control.”
Among the total defendants, nearly 600 have been charged with assaulting, resisting, or impeding law enforcement, and arrests are ongoing.
The longest sentences have been handed down to defendants like Stewart Rhodes, founder of the Oath Keepers, and Enrique Tarrio, leader of the Proud Boys. While they were not charged with direct violence within the Capitol, they were convicted of seditious conspiracy and other felonies for orchestrating the riot.