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Trump got hit by two gag orders from two different judges. The precedent in this area of law is severely underdeveloped, both because so few defendants get gagged, and of those who do very few have the resources or energy to mount an appeal. Jacob Sullum writes a great overview of the issue:
So to avoid the common pitfalls in discussions like this, set aside Trump for a moment. Should judges have any authority to impose gag orders? If so, what limits should be in place? After working out the questions in theory, how does your position apply to Trump?
I think gag orders can be appropriate in a very limited set of circumstances. For example let's say a newspaper owner is charged with murder in a small town. He should always have the absolute and unrestricted right to discuss the allegations against him and mount a defense in public. There are some areas where it starts to get cloudy for me, like for example if he hires an investigator (legal & appropriate) to dig into the history of the main witness against him (legal & appropriate) and he gets his hands on her diary (potentially legal & potentially appropriate). He then spends the lead-up to the murder trial publishing massive coverage the lurid details of all her sex kinks and fantasies, which isn't implicated in the murder charges. To me this starts to look like witness tampering/intimidation, where the defendant is humiliating a witness with the intent to discourage her from giving testimony.
So my answer is here would be yes, judges can impose gag orders but they should be extremely narrow. The operating principle should be to always allow defendants to discuss the direct charges against them, including the ability to discredit witness credibility. There's a blurry line between when someone is discrediting a witness on relevant matters, and when they're just trying to make their life hell to discourage them from testifying. An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.
So with that out of the way, how does it apply to Trump? Judge Chutkan's order restricts him from making statements that "target" the prosecutor, court staff, and "reasonably foreseeable witnesses or the substance of their testimony". Practically speaking, it goes without saying that it's a terrible idea to talk shit about the court or prosecutor while your case(s) is pending. There are some obvious areas where Trump's commentary is inane and irrelevant, like posting a photo of a judge's law clerk and claiming she's "Schumer's girlfriend", or posting about the prosecutor's family members. Discrediting witnesses is harder to draw a clean line on, because again there's a gradient between discrediting and intimidating. I think Trump should have the absolute and unrestricted right to discuss any of his charges and discredit any evidence and witnesses against him. While I disagree with that part of the ruling, I don't know how I would rephrase that clause, and so my reaction is that in these close cases we should default to allowing speech rather than restricting it.
Edit: @guajalote changed my mind on the propriety of Judge Engoron's order prohibiting "personal attacks on my members of my court staff". I agree that criticizing government officials should always be protected, even if the speech is targeting irrelevant or uninvolved individuals. A narrower order prohibiting incitement would've been more appropriate.
I think not. If it's witness tampering, charge the appropriate crime. If it's obstruction of justice, charge appropriate crime. If it's interfering with government proceedings, charge the appropriate crime. If it's speech that nods in the direction of one of those but doesn't actually rise to the level of meriting a charge, tough shit, defendants do actually get to say mean things that aren't criminal.
I can recognize the difficult balancing act that some utterances would cause here, but ultimately just side with First Amendment rights dominating those considerations. Perhaps even more to the point, I don't trust judges to not thoroughly abuse their authority. To wit:
Of course! I'm not dumb enough to do such a thing, but the idea that those that would affront a judge could be punished for offending rather than any actual criminal action is an affront to my sensibilities and leaves me disinclined to start granting additional judicial powers to remove constitutionally protected rights as they see fit. If we lived in a hypothetical world where Jack Smith was indeed engaging in a deranged witch-hunt and the judge was a biased, Trump-hating judge, it would be very bad to deny the defendant the ability to say so.
What about potential intimidation. My understanding of the reasoning is that Trump and/or his followers might threaten people involved in the case thus basically making it impossible to get witnesses to testify. If Trump tweets out the name and likeness of someone connected to the trial, his followers might threaten them or damage property etc.
As above, charge him or don't. If he's engaging in witness intimidation or conspiring to do so, that's a crime and should be treated accordingly.
I disagree with this on the basis that there is (intentionally) a gap between the crimes you can commit and the crimes you can be convicted for. "Beyond reasonable doubt" is a high standard. Also even if you can prove it, a criminal prosecution takes time and there's value in stopping the misconduct more quickly than that.
E.g. we don't require cops to prove beyond reasonable doubt that the guy with a knife is definitely going to do some stabbing before they mag dump him. We think it is reasonable for them to act to protect the community when he makes a sudden lurch that looks a lot like intent to stab.
Ah, I see we're in the 'words are tantemount to literal weaponized physical threats' territory for speach-restraint advocacy now.
Depends what the words are. But yes, words can certainly be used to intimidate, threaten, or encourage violence. And all of those things can make it quite difficult to run a trial.
Those first two are fair, but silencing someone to prevent that last one is, generally speaking, beyond the pale in the US.
The right to advocate for violence, in the abstract, especially at a later date, has been ruled to be constitutionally protected speech in both Brandenburg v Ohio and Hess v Indiana.
I mean, yeah? But we, as a country, haven't generally been optimizing for ease of running a trial. We have, generally, been optimizing for not allowing speech to be suppressed. Do you have an argument for why now is the time to pivot?
Pivot? I was under the impression that gag orders are a longstanding practice.
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Except that’s where the proof comes into play for the police, because intention always precedes action. And if the former and be proven beyond a reasonable doubt, it doesn’t really matter that the latter was able to carry out the act successfully.
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