Gag orders issued in criminal cases and less often in civil cases, are supposedly done to control publicity and protect the right to a fair trial. Such orders are supposed to balance the right to a fair trial with the First Amendment free speech rights of the people being silenced.
Because courts have almost always overturned trial judges’ attempts to restrict the news media’s right to report on cases, gag orders typically apply to participants in a case. This is especially true today with the widespread use of social media. Citizen journalists abound and would be far more difficult to control.
Special Prosecutor Jack Smith did the expected. We all knew this was coming. On Friday last week, U.S. District Court Judge Tanya Chutkan unsealed previously hidden court filings revealing the DOJ’s request to silence Donald Trump via a judicial gag order [Read PDF Here].
Gag orders involve competing constitutional rights: the right to a fair trial with an impartial jury versus free speech. It can be difficult to balance those rights.
Let me say this upfront. I have a problem with the entire concept of “gagging” persons who are being persecuted. And I use that word deliberately. Persecution is what many of the cases in DC are. If you do not bow down and kiss the jackboots who want to control everything, you may find yourself being persecuted. Just ask most of the J6 defendants.
This is especially true now because it seems to be standard procedure for federal prosecutors in any case that generates broad publicity to leak grand jury information. When was the last time you heard the government side of a prosecution being disciplined for such behavior? Aren’t there rules about grand jury proceedings?
In general, impartial courts focus on three questions when deciding whether gag orders violate the First Amendment:
- How likely is it that further public statements by participants in the case will prejudice the jury and harm the judge’s ability to conduct a fair trial?
- Can the judge use other methods to ensure a fair trial that don’t restrict free-speech rights (like using the jury-selection process to weed out people who were prejudiced by pretrial publicity or instructing jurors not to pay attention to news)?
- If not, does the gag order specifically address the problems, or is it too broad?
Also, the standards for gag orders may depend on the person being “gagged.” For instance, judges have more leeway in restricting speech by attorneys in a case than by ordinary citizens.
Let’s take the first question. Smith’s case against PDJT has probably generated more publicity than any case in American history. Leaks to the media by the government have been a constant since the raid of Mar-a-Lago. Actual “evidence” has found its way into the newscasts of Big Media right from the get-go. Would it be fair to gag the target of these scurrilous news bits? Shouldn’t the target of these leaks have the right to speak out against the lies that are being spread? Hasn’t this already poisoned the jury pool? How would gagging the target help the cause of justice?
How about the second question? Given that the defendant is PDJT, it is going to be extremely difficult to seat an impartial jury. PDJT is a polarizing figure because he stands up for truth and justice. PDJT is a “love’em hate’em” type of personality.
PDJT is guided by facts and common sense. He knows that slavish devotion to theory can lead to nonsensical beliefs; for instance, that children should be able to change their sex; that police forces should be defunded; or that biological boys should be able to compete against girls in athletics.
With Trump, what you see is what you get. it takes courage and independence to live authentically. This makes some people uncomfortable. This is especially true of the go-along-to-get-along crowd. People do not like to have their beliefs challenged. But the truth has no agenda.
It is hard to imagine how any gag restrictions would have any effect on the jury pool. However, if they are really concerned about the jury pool being poisoned, they could always move the trail somewhere else. I hear that South Carolina is available.
Turning to the third question, essentially the question is, is the gag order too broad? It is here that one gets into the issues of free speech as defined in the Bill of Rights.
Jack Smith has called the gag request “narrowly tailored.” However, it covers a gamut of people including people active in the political arena. Let’s understand what Smith is doing here. Smith is trying to turn some people (think Joe Biden, et al) into being seen as victims when, in theory at least, they are perpetrators.
Such an order would effectively bar PDJT from discussing the case in the middle of a presidential campaign. So, Jack Smith is trying to silence the leading presidential candidate from discussing a main issue of the campaign. PDJT is running on the issue of the weaponization of the DOJ and the criminal justice system. Millions of Americans agree with him.
PDJT smoked rats out of their hiding places. We now know that our intelligence agencies are corrupt. We know also that the mainstream media is not just biased but is the propaganda arm of the Democratic Party and of billionaires who see us as serfs. The gestapo tactics of the FBI are becoming widely known through alternate media sources on the Internet. BTW this is one of the reasons that the government has been censoring content on the Net.
Smith is trying to shut down any discussion of the above. More and more Americans even those who do not care for PDJT are recognizing this truth. Gagging PDJT in the middle of a presidential campaign would end freedom of speech. Period. If those who currently control the levers of power succeed here, then our battle for the “shining city on the hill” may be lost.
Now when I say succeed, I do not mean that the judge grants Smith’s request. The judge is seen to be highly biased and may very well given in to her biases and try to silence PDJT. If she does, I am certain this would lead to an appeal that would likely get to the Supreme Court if it were not overturned before that.
The whole issue of gag orders is quite controversial and I don’t believe it has been addressed by SCOTUS on principle. There have been some court decisions particularly in the area of social media which determined that the particular gag order was not constitutional. However, those cases were civil not criminal.
I end this post with a prayer.
May God save and protect PDJT. May all weapons forged against him shatter. May God save and preserve America. Amen.