U.S. Department of Justice Robert Rundo, a founder of the neo-Nazi Rise Above Movement, punches a counter-protester during a political rally at Bolsa Chica State Beach, California, on March 25, 2017.

A federal judge this week cited the First Amendment in tossingcriminal charges against three members of a neo-Nazi organization accused of conspiring to assault their ideological opponents, handing the government another defeat in its struggle to curtail white supremacist violence. Robert Rundo, Robert Boman and Aaron Eason, all members of the violent white nationalist group Rise Above Movement (RAM), were charged last year under the federal Anti-Riot Act in connection with their actions at political rallies across California in 2017. Prosecutors alleged that the men conspired to assault opposing protesters at political rallies in Huntington Beach and San Bernardino and on the campus at the University of California, Berkeley. The men sometimes taped their hands and wore skull masks allegedly in preparation for violent encounters. Video evidence showed them punching and kicking protesters. Rundo, one of the group’s founders, even punched a police officer twice in the head. An FBI affidavit accused the men of using social media to “prepare to incite and participate in violence.” The men, according to the criminal complaint, “publicly documented their assaults in order to recruit” other white men to join RAM. But on Monday, U.S. District Judge Cormac Carney found the Anti-Riot Act of 1968 to be “unconstitutionally overbroad,” writing in his order dismissing the indictment that the law had a “chilling effect” on free speech. Instead of focusing on criminalizing “acts and imminent threats of violence,” he wrote, the Anti-Riot Act “focuses on pre-riot communications and actions” and “sweeps in a wide swath” of protected activity. “Although some alleged overt acts create no First Amendment problem, the Indictment also contains a substantial amount of protected expressive activity,” the judge wrote. “It charges the Defendants with making social media posts months before ― and months after ― any political rallies. Some posts express repugnant, hateful ideas. Other posts advocate the use of violence. Most, if not all, are protected speech.” Two of the defendants, Rundo and Boman, were still in federal custody before the judge’s ruling and were released on Monday after the cases were dismissed, according to one of the taxpayer-funded lawyers representing them. A fourth RAM member, Tyler Laube, had pleaded guilty last year to a single conspiracy-to-riot charge, but that charge could also be dismissed if he enters a similar motion. Carney wrote that prosecutors had a number of laws available to protect the public from violence, including California anti-rioting statutes and laws against assault, as well as federal laws on assault, civil disorder, conspiracy to “injure, oppress, threaten, or intimidate” a person exercising their constitutional rights, hate crimes, and conspiracy to interfere with civil rights. “Make no mistake that it is reprehensible to throw punches in the name of teaching Antifa some lesson,” Carney wrote, referring to anti-fascist groups. “Nor does the Court condone RAM’s hateful and toxic ideology. But the government has sufficient means at its disposal to prevent and punish such behavior without sacrificing the First Amendment.” A spokesman for the U.S. Attorney’s Office in Los Angeles told reporters that federal prosecutors were “disappointed in the court’s ruling and we are reviewing possible grounds for appeal.”

Some posts express repugnant, hateful ideas. Other posts advocate the use of violence. Most, if not all, are protected speech. U.S. District Judge Cormac Carney