I’ve been getting comments and questions like these on social media:
Why isn’t there a gag order for Trump? he puts out dangerous statements constantly.
I read that former prosecutors are worried about the danger Trump poses through his social media posts. Why isn’t anything being done?
He needs pretrial detention, and he needs it now!
I think people visualize something like this: Lock him up. Take his phone. And we are done with him.
For why it isn’t that easy, let’s take a look at the law.
There are particular problems with a court issuing an order forbidding the defendant from criticizing the court
A court is part of the government. Trump is a private citizen. We have a long history of the First Amendment allowing citizens to criticize the government.
Our First Amendment jurisprudence dates back to colonial America when the revolutionaries had a particular hatred for the Sedition Act of 1661, which made it a crime to criticize the king. By the eighteenth century, the Sedition Act included any acts slandering government officials. The drafters of the First Amendment specifically wanted to end the Sedition Act and allow any citizen to criticize the government. (For more, see The First Amendment: Creation and Reconstruction, by Akhil Reed Amar.)
If you think about it, there would be something not quite right about a judge issuing orders forbidding a defendant from criticizing her. (Her staff are different; they are not government officials or public figures.) Adding: This does not apply to court staff, who are not public figures.
Oh come on, Teri! We’re talking about language that might incite violence!
Okay. Let’s talk about the law governing language that may incite violence.
Brandenburg v. Ohio (1969)
Clarence Brandenburg, a leader of the Ku Klux Klan in Ohio, gave a speech at a rally on a farm in Hamilton County, Ohio. The event included twelve men wearing white hoods, some carrying firearms, who burned a large wooden cross. Attendees made slurs against Black and Jewish Americans. Brandenburg gave the following speech:
If you want to know what kind of guy Brandenburg was, he’s the guy in the sheet. He’s standing with his friend, Richard Hanna:
Brandenburg was arrested and charged under an Ohio statute that made it a crime to advocate violent means of overthrowing the government. Brandenburg was convicted for advocating the violent overthrow of the government.
The Supreme Court overturned the conviction on First Amendment grounds. The Court held that Brandenburg’s speech was protected under the First Amendment because it was “not directed at inciting or producing imminent lawless action” and was not “likely to incite or produce such action.” (emphasis added)
The “imminent” part is important. And there has to be more than a possibility. And the imminent violence has to be likely.
We could analyze whether Trump’s speech meets the Brandenburg test, but I will leave that to you. Here is how to do it. First, locate one of Trump’s posts that you think meets the Brandenburg test. Then ask yourself these two questions:
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- Is Trump’s post “directed to inciting or producing imminent lawless action,” AND
- Is the post “likely to incite or produce such action?”
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In its motion for a limited gag order, DOJ does not, in fact, allege that Trump’s language meets the Brandenburg test. The words “incite” and “Brandenburg” are not mentioned. While the DOJ lists posts that attack the court, prosecutors, and witnesses, the DOJ alleges that Trump must be stopped because his posts threaten to:
Even if the DOJ did allege that Trump’s language met the standard in Brandenburg, the question is what should the DOJ do? Charge Trump with a crime? Or ask for a gag order?
Gag orders bring us to another problem.
The Law Disfavors Prior Restraints
In 1925, Minnesota passed a law making it illegal for a newspaper to be a public nuisance. Specifically, the law stated that anyone who engages “in the business of regularly and customarily producing, publishing, . . . a malicious, scandalous and defamatory newspaper, magazine or other periodical,” was guilty of being a public nuisance. The law authorized the state to prevent the newspaper from continuing to publish offensive material.
A Minneapolis newspaper called The Saturday Press printed highly defamatory articles (to say the least) about local officials. The local officials sued and won. The local government shut down the newspaper.
The Supreme Court, in Near v. Minnesota, reversed and held that the First Amendment forbids prior restraints: People can publish whatever they want. If what they publish is illegal, they can be charged, tried, convicted, and punished.
We also have a Supreme Court case (Nebraska Press Association v. Stuart) on prior restraints in a criminal case. A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused.
The Supreme Court disagreed and basically said No Prior Restraints.
Notice two things: The restraint was not against a defendant and the restraint was to protect the defendant. (More about that later)
But what about the fact that Trump is a defendant who has been charged with a crime? Doesn’t this give the court more leeway?
Major Problem: The Supreme Court has never given the standard for when a defendant in a criminal case can be silenced
The DC district has, in the past, issued gag orders in criminal proceedings. The hitch is that the purpose of the gag orders was to silence the attorneys, not the defendant. For example, in United States v. Stone, the order restricted the attorneys. In U.S. v Butina, the gag order was against all parties and lawyers, but the reason for the gag order was that the prosecutors were out of line. The Defendant, Maria Butina, was not speaking inappropriately and there was no indication that she would.
We do have a Supreme Court case to consider, Gentile v. State Bar of Nevada. Here is what happened:
Gentile, a lawyer, held a press conference the day after his client, Sanders, was indicted on criminal charges under Nevada law. Six months later, a jury acquitted Sanders. Subsequently, respondent State Bar of Nevada filed a complaint against Gentile, alleging that statements he made during the press conference violated Nevada Supreme Court Rule 177, which prohibits a lawyer from making extrajudicial statements to the press that he knows or reasonably should know will have a “substantial likelihood of materially prejudicing” an adjudicative proceeding.
His penalty: He was privately reprimanded.
He appealed to the Supreme Court and argued that Nevada Supreme Court Rule 177 violated his First Amendment rights. The Supreme Court agreed that the statute violated his free speech rights because it was too vague.
The Court also said that the speech of lawyers can be restricted under a less demanding standard ordinarily required because lawyers are officers of the court.
Here is what the Supreme Court didn’t do: The Supreme Court did not define when a defendant can be silenced.
Here is why it matters: The defendant stands in an unusual position: It is the individual up against the government. The government has the power. Therefore, defendants have rights. Most of the advancement in criminal procedure, beginning when the liberal Warren Court decided it wasn’t okay for local police in the South to beat confessions out of Black men, has been to protect the rights of defendants. Silencing a defendant raises novel issues.
This is a problem because when there are gaps in the law, or the law is not clearly defined, as here (1) the judge doesn’t have much guidance and (2) Trump will have an issue to appeal. When the law is unclear, the Supreme Court is more likely to hear the case.
It makes sense that gag orders have been against the lawyers and not the defendants. Most defendants are smart enough to remain silent and allow their lawyers to speak for them. Even those who defy their lawyers and make public statements, generally know better than to threaten the judge and attack witnesses.
How strong his appeal will be depends on the nature of the gag order that the judge issues. The less it restricts Trump, the weaker his argument on appeal.
See the catch? The less it restricts Trump, the freer he is to keep making statements attacking the court, the prosecutors, and potential witnesses.
Why not just order pretrial detention?
This will not silence Trump. He can speak from jail. Even people convicted of crimes retain their First Amendment rights. Prisoners have the right to visitation, which means that Trump can write down his message for the world, and a family member can post it to his account.
A former president issuing messages from prison will get far more attention than his Truth Social posts. In fact, a former United States president issuing statements from prison will be sensational international news.
My point isn’t that he shouldn’t be detained. My point is that this will not silence him.
The standard for issuing gag orders (for attorneys)
Remember, we don’t have a standard for silencing the defendant. But let’s look at the factors to consider to make sure a gag order against the media or attorneys is constitutional:
- the nature and extent of pretrial news coverage;
- whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and
- how effectively a restraining order would operate to prevent the threatened danger [of an unfair trial for defendant].”
(1) is easy. Trump’s trial before Judge Chutkan may be the most followed and widely publicized trial in American history.
(2) One possible measure is for the judge to insist on an anonymous jury. Another is careful screening of jurors.
(3) This is the interesting one. Notice that the defendant has the right to a fair trial. Case law has centered on whether pre-trial publicity endangers the defendant’s right to a fair trial. For example, in this case, the Court found that a lower court’s gag order was justified because publicity of alleged shocking crimes would be widespread and would likely reach a jury, impairing the defendant’s right to a fair trial.
Trump is poisoning the jury pool against himself. He is attacking the people of Washington D.C. He called D.C. a place filled with “filth and decay” which is the way he talks about any city with a large Black population.
The people of D.C. are not fooled. In fact, Biden won 93% of the vote in Washington D.C. I suspect some of the remaining 7% were turned off after the violence of January 6. In other words, he knows he doesn’t have many friends there.
For a defendant to poison the jury pool against himself is different from a newspaper or prosecutor poisoning the jury pool against a defendant.
Right?
Stop and think about the insanity of Trump attacking the judge who will decide his case and casting public slurs against the jury that will decide his fate. I suspect that he’s making all that noise about how Washington D.C. is a cesspool filled with horrible people who hate him because he knows he will lose and he is already making his excuses, as when he said “The only way I lose this election is if they cheat.”
I also suspect, even with Trump creating danger, that there will be no shortage of jurors in Washington D.C. willing to sit on this jury. After all, soldiers volunteer for combat for the good of the country.
One of my readers said this:
You did warn us that indictments were the start of a long harrowing process. I didn’t realize how harrowing it would be with Trump pushing back against everything.
This is Trump, so things will not get better. When Trump is gone, someone else will rise up to replace him. You see, Trump taught the far right wing how to wreak havoc. They don’t like democracy–but that’s another story.
Ha! Just as I thought I was almost finished writing this, Trump filed this:
Trump’s Motion Opposing the DOJ’s Request for a gag order
You can read it here. Notice how he opens:
His lawyers had enough sense to bring in the Constitution and the rule against prior restraints.
Trump then accuses the government of trying to poison the jury pool against him:
Following these efforts to poison President Trump’s defense . . .
In a footnote, he points out that:
His main criticism is that the government’s request as too broad. Of course, being Trump, he throws in his media talking points:
He also keeps referring to himself as “President Trump” 😂 Some of his solutions are equally laughable: He suggests changing the venue or postponing the trial.
Conclusion
As you consider what you think Judge Chutkan should do, keep this in mind: Trump and his lawyers would welcome the opportunity to turn the January 6 case against Trump into a fight about the First Amendment. That’s the conversation they want to have.
I think people have forgotten Trump’s skill at controlling the national narrative. He knows how to get people talking about what he wants people to talk about.
If Judge Chutkin does issue a gag order, I assume it will be narrowly tailored so that it withstands appeal. She could also impose, as a penalty, moving the trial date forward each time he violates it.
A trial sooner rather than later would address his complaints that he can’t be silenced while campaigning. Why not get the trial out of the way before the primaries begin?
Advice: Stop Listening to Rage Merchants
Just as I was finishing this post, a reader (not a lawyer) on social media said this to me:
Please tell me why Mr. Trump is not in jail. You don’t let a drug dealer walk around freely waiting for his trial either, right?
Bankman-Fried had his 250m bail (!) also revoked for interfering with the investigation/trial, hadn’t he?
Judge Chutkan will not ignore the First Amendment, ignore prior cases involving gag orders (which is the issue on the table right now), and ask herself, “Hm. How did that court over there treat a drug dealer? Well, we should do that to Trump, too.”
She will also not say something like this: “There was evidence that Bankman-Friend repeatedly tried to influence a witness (including direct contact with witnesses), so we should throw Trump in jail, too.”
See how wrong that would be?
I suspect that the person who said that to me was repeating something he or she read on the Internet. I also suspect the origin is a clever rage merchant who either doesn’t understand how the law works or has a goal of keeping people enraged (because this stimulates engagement.)
It’s the Fox News model — incite anger and rage by simplifying complex situations. Don’t fall victim to it. Just turn off the rage merchants or people who are feeding you nonsense like that.