The Supreme Court said Tuesday it will not consider a challenge to a misdemeanor charge used against dozens of rioters on Jan. 6, 2021, for the illegal “march” on the Capitol.

Florida native John Nassif was convicted of four felonies in connection with the Capitol riot and sentenced to seven months in prison, which he has already served. Federal prosecutors said he led a call-and-response chant, shouting, “Whose house? Our home!” before gaining entrance to the Capitol and motioning for others to join him there.

He appealed one of those convictions on a charge that prohibits “marching, demonstrating or picketing” in any of the Capitol buildings. Hundreds of the January 6 rioters face the felony count, making it among the most common charges.

In Nassif’s petition to the justices, he asked them to determine whether the statute, Section 5104(e)(2)(G), is “unconstitutionally overbroad.”

“Although this case arises out of the events of January 6, 2021, 5104(e)(2)(G) criminalizes protected expression that bears no resemblance to the conduct that made that day infamous,” Melissa Fussell, Nassif’s federal defense attorney, wrote the judges.

Fussell pointed to congressional records that indicate the law, passed in 1967 at the height of the Civil Rights Movement, was motivated by “a desire to silence certain viewpoints.”

“The overbroadness of the law has been a concern from the beginning,” Fussell wrote, noting a lawmaker’s warning at the time that the measure was akin to “using a shotgun to kill a fly.”

“However, the bill became law,” she said.

Attorney General Elizabeth Prelogar cited a lower court ruling that the Capitol is a “non-public forum” where the government can limit First Amendment activities if those restrictions are “reasonable in light of the purpose of the forum and are neutral.” The decision was upheld by a federal appeals court.

The number drew criticism from other quarters, including a federal judge who condemned the government for “fostering confusion” about the meaning of the riot by offering the defendants Jan. 6 plea deals on the charge, using language that could give the impression that it was a legal protest. “just in the wrong place.”

“This is not legitimate political speech,” U.S. District Judge Beryl Howell said in 2022. according to The National Law Journal. “This was not a protest.”

More than 1,500 rioters were charged in connection with the Capitol attack.

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