Published October 25, 2023
The reason you have not heard of a gag order on par with the one imposed on former President Trump is that it is highly unusual. Normally, in a criminal proceeding, there are no gag orders. To the extent they exist, they typically only bind the lawyers, who are admonished to adhere to the rules of professional conduct. Rarely—as in almost never—are criminal defendants forced into a gag order on such spurious grounds as they might “vilify and implicitly encourage violence against public servants who are simply doing their jobs.”
In fact, precedent almost uniformly emphasizes familiar First Amendment principles, which limit the court’s authority, including disfavor towards “prior restraints” and “content-based restrictions” on speech.
In a case involving the prosecution of a congressman, the Sixth Circuit federal court of appeals noted that “such broadly based restrictions on speech in connection with litigation are seldom, if ever, justified. Trial judges, the government, the lawyers and the public must tolerate robust and at times acrimonious or even silly public debate about litigation.”
The Sixth Circuit emphasized that criminal defendants are already very much disadvantaged vis a vis the government, and that any court restrictions must accommodate this asymmetry. “A criminal defendant awaiting trial in a controversial case has the full power of the government arrayed against him and the full spotlight of media attention focused upon him. The defendant’s interest in replying to the charges and to the associated adverse publicity, thus, is at a peak. So is the public’s interest in the proper functioning of the judicial machinery.”
Other circuits follow a less restrictive rule, but even those emphasize the need for any such orders to be narrowly tailored to accomplish a substantial government interest.
Courts typically have broad powers to enforce discipline in their courtrooms and over lawyers, but preemptively stifling a defendant from “making statements targeting prosecutors, possible witnesses and court staff” has a very broad reach. After all, isn’t every member of Congress, every January 6 defendant, and every single person Trump spoke to about the 2020 election a potential witness?
Since part of Trump’s presidential campaign rests on the view that the 2020 election was rigged, how can he effectively run for president in 2024 under this type of restriction?
The D.C. Jury Pool Starts Off Very Biased
The gag order also is very unlikely to be effective in achieving its stated purpose. The judge suggests a fair trial is possible, but that, without the gag order, Trump will influence the process and potentially poison the views of the jury pool.
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SOURCE: https://www.zerohedge.com/political/gag-order-against-trump-real-threat-democracy
RELATED: ACLU Urges Judge to Reconsider Trump Gag Order in DC Election Case
Published October 25, 2023
The American Civil Liberties Union on Wednesday urged a U.S. judge to reconsider a partial gag order she imposed on Donald Trump in the case accusing him of trying to overturn his 2020 election defeat, arguing it violates his free speech rights.
“Trump retains a First Amendment right to speech, and the rest of us retain a right to hear what he has to say,” the ACLU wrote in an amicus brief filed in U.S. District Court in Washington.
The organization argued that the gag order by U.S. District Judge Tanya Chutkan, which she has temporarily lifted, is “unconstitutionally vague” and covers such a broad range of topics that it would “undermine public discussion on matters of public concern.”
The order bars the former U.S. president and others directly involved in the criminal case from making public statements that target prosecutors, court staff and potential witness in the case. It allows Trump to criticize the U.S. Justice Department and to denounce the prosecution as politically motivated.
Chutkan issued the order after finding that Trump’s social media posts and public comments risk influencing witnesses and prompting threats and harassment against public officials. Trump has repeatedly referred to Special Jack Smith, who is prosecuting the case, as a “thug” and “deranged.”
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SOURCE: https://www.newsmax.com/us/aclu-freedom-speech/2023/10/25/id/1139625/
RELATED: Judge imposes partial gag order on Trump in election interference case
Published October 16, 2023
A US federal judge has ordered a partial gag order on former president Donald Trump in his 2020 election interference case.
US District Judge Tanya Chutkan’s ruling on Monday will limit what Mr Trump can say in public about people involved in the case. The order will also prohibit Mr Trump from attacking special counsel Jack Smith, federal prosecutors and the court’s staff.
Mr Smith’s office has accused the 2024 Republican front-runner of using harsh rhetoric to undermine the public’s faith in the judiciary.
Mr Trump’s team says the effort to impose a gag order on the former president is an attempt to “silence” his First Amendment right to political speech.
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SOURCE: https://www.thenationalnews.com/world/us-news/2023/10/16/donald-trump-gag-order/
