Appeals court upholds gag order on Trump in Washington case but narrows restrictions on his speech

[BumRushDaShow]

Source: AP

Updated 2:27 PM EST, December 8, 2023


WASHINGTON (AP) — A federal appeals court in Washington on Friday upheld a gag order on former President Donald Trump in his 2020 election interference case but narrowed the restrictions on his speech.

The three-judge panel’s ruling modifies the gag order to allow the Republican 2024 presidential front-runner to make disparaging comments about special counsel Jack Smith. But the court upheld the ban on public statements about known or reasonably foreseeable witnesses concerning their potential participation in the case.

“By broadly proscribing any statements about or directed to the Special Counsel and the court’s and counsel’s staffs, as well as reasonably foreseeable witnesses or their testimony, the Order sweeps too broadly,” the court said in its opinion. “It captures some constitutionally protected speech that lacks the features or content that would trench upon the court’s proper functioning or ability to administer justice.”

Trump, who has described the gag order as unconstitutional muzzling of his political speech, could appeal the ruling to the full court or to the Supreme Court.


Read more: https://apnews.com/article/trump-capitol-riot-gag-order-33f75551e369b43cc903ad9f2c5d9439

[Deuxcents]

1. More appeals coming

[iluvtennis]

6. tfg only has the Supreme Court left. nt

[noclue023]

15. He needs a full gag order ! -

Most of the republican party & Americans want this poor excuse of a man want him to disappear ! Plus Moses is not in the constitution to lead the SOTH. I checked ! Nobody in the house has parted the red sea yet as of today .

[Timewas]

2. Hells Bells

Our entire justice system is an un-entertaining circus

[ificandream]

3. I hope these attorneys of his are charging him big, big, big, BIG bucks.

[iluvtennis]

7. If tfg's MO holds, he'll find someway not to pay the lawyers. n/t

[noclue023]

16. Don't mean they will be pay'd ?????????????????????????

[Proudfoot]

4. Will be further paired down by the SC.

Last edited Fri Dec 8, 2023, 05:37 PM - Edit history (1)

As explained by the ACLU, the original special counsel request and order were patently overbroad. Political speech is the core protection of the First Amendment.

Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252. This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 342, 328 U. S. 343, n. 5, 328 U. S. 345.
NYT v. Sullivan. See also Garrison v. Louisiana.

In a nutshell, any gag order that goes beyond what is already illegal, is probably unconstitutional. Actual threats, actual witness tampering, actual disruption of court proceedings are all already illegal. Criticism will almost always be protected.

Moreover, don't forget that the courts have emphasized, going back to at least Martin v. City of Struthers, that the issue isn't just Trump's right to speak, it's the public's right to hear what he has to say. Additionally, these cases go back to the 60's. The current court has been significantly more protective of free speech rights than the courts of old.

To anyone who really thinks a ban on criticizing (not threatening - and the threat will have to be one that is likely to incite, imminent lawless action.) judges, prosecutors, or witnesses will survive, go back and reread Section II of Sullivan.

Edit: Now that I've read the opinion, it seems like the reporting is missing an important qualifier:

"if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result."

"Furthermore, by requiring that the interference be material, we make clear that statements including or leading to intemperate and rude remarks—without more—are not proscribed."

So, as I said before, only actual disruption is going to be able to be punished.

So, "Jack Smith's wife is ugly" "Judge Chutkan is really Canadian and a crook" "The judge's clerk hates America" would all be OK.

[BumRushDaShow]

8. In this case the problem

is his words have triggered OTHERS to carry out a massive number of verbal and written threats, and the amount of resources that then need to be deployed to hunt down each and every perp, becomes a burden that points to this so called "speech" being "incitement".

[dpibel]

9. You're wrong as to witnesses

The opinion's quite clearly in two parts, affirming the original order as to witnesses, and modifying it as to other participants in the trial.

You've quoted from page 3 (and the language is repeated at the end of the opinion), but you've inexplicably omitted the first part of the paragraph, which reads like this:

Specifically, the Order is affirmed to the extent it prohibits
all parties and their counsel from making or directing others to
make public statements about known or reasonably foreseeable
witnesses concerning their potential participation in the
investigation or in this criminal proceeding.

And what's more, in order to make your erroneous argument, you had to quote only part of the sentence you've presented as the full holding in the case. The part you left out looks like this:

The Order is also affirmed to the extent it prohibits all parties and their counsel
from making or directing others to make public statements
about—(1) counsel in the case other than the Special Counsel,
(2) members of the court’s staff and counsel’s staffs, or (3) the
family members of any counsel or staff member—if those
statements are made with the intent to materially interfere with,
or to cause others to materially interfere with, counsel’s or
staff’s work in this criminal case, or with the knowledge that
such interference is highly likely to result. We vacate the Order
to the extent it covers speech beyond those specified categories.
See 28 U.S.C. § 2106.

So, in fact, the opinion specifically says (and at considerable length in the following 65 pages) that, as to witnesses, there is no requirement at all for actual disruption or illegality, to use your standards.

I guess we'll find out soon enough who has the better grasp on the issue: You, or two levels of the federal judiciary.

[Proudfoot]

11. You're right, I skimmed.

Now that I've had a chance to read, not skim, the important part about witnesses starts on 54:

Without an example of speech about a person covered by the Order that would not constitute forbidden targeting, the transcript does not meaningfully narrow the Order’s operative language in a way that accommodates both the weighty free speech interests and
the compelling judicial interests at stake.

For those reasons, we hold that the Order is not sufficiently narrowly tailored and so can be upheld only in part, asvexplained below.

[T]he Order must focus more directly and narrowly on comments that speak to or are about those persons’ potential participation in the investigation or in this criminal proceeding.

That allows the former President to continue to speak out about those same persons’ books, articles, editorials, interviews, or political campaigns as long as he does so in a manner that does not concern their roles as witnesses or the content of any expected testimony.

For those witnesses who previously served or are currently serving in high-level government positions, narrowing language would also allow the former President to voice his opinions about how they performed their public duties, wholly separate from their roles as potential witnesses.

So, he can disparage witnesses that have spoken out first or are/were government officials as long as it doesn't concern their participation in the case. Hmmm, so basically as long as he doesn't directly reference the trial, he's ok, right? No:

To be clear, narrowing the Order’s reach to statements concerning reasonably foreseeable witnesses’ potential
participation in the investigation or in this criminal proceeding does not require that the statements facially refer to the
person’s potential status as a witness or to expected testimony.

Context matters. The statement that a potential witness “is a liar” might well concern that person’s testimony if made on the eve of trial or immediately following news reports that the person is cooperating with investigators. The same words might not concern that person’s status as a witness if uttered immediately after and in response to the release of that person’s book or media interview unrelated to this court proceeding.

So, "Miley is a liar and shouldn't be allowed to testify" would be prohibited. The problem with that, is that the only basis for the gag order is to prevent witnesses from being discouraged from participating (for whatever reason Judge Chutkan didn't include jury tampering as a basis) - Does any reasonable person think that Miley is not going to testify just because Trump called him a liar the night before trial? So, the order would be overbroad in that it prohibits speech that it doesn't need to. It, at least, needs to include the same language like "intending to or highly likely to" discourage the witnesses participation.

This issue has "bad facts make bad law" written all over it.

[dpibel]

12. I commend your hard work!

But the fact that you can pull up a counterfactual really isn't all it takes. Not to mention that you seem to have overlooked the fact that the court discusses the spillover effect: Negative publicity might not affect a tough guy like Milley. But he's not the only witness eligible to be intimidated.

Again, I'm going to kind of figure that 4 federal judges have a better grasp on the law than, just as a random for instance, not targeted at anyone in particular, some anonymous commenter on the InterWebz.

[noclue023]

17. That sounds like -

taking a whole lot of word's & taking a turd & twisting it into a congressional cow patty ? Damn this fun watching the repub's trying to bail their azz out of the last 7 yrs ! won't happen !

[EndlessWire]

10. Is defamation okay?

I wouldn't think that his free speech rights include defamation. Some of the stuff he says is clearly defamatory. Seems like the only solutions are to sue his socks off. Just fill the courts with endless lawsuits against his right to defame people.

[SouthernDem4ever]

14. sounds more like slanderous speech than political speech

If what he was saying about them isn't true.

[republianmushroom]

5. Past time to stop the coddling.

34 months and counting

[LetMyPeopleVote]

13. This ruling makes me smile