Are gag orders undermining free speech?
The question of so-called “gag orders” has come to the fore in the various trials of President Trump.
Even a First Amendment extremist, like me, understands that the right to free speech has justifiable limits. Freedom of speech does not extend to slander or libel … or lying under oath … or inciting a riot … or intimidation of witnesses or others. Owners of private property can prohibit speech on their premises.
When courts order a limitation on a person’s speech, we call it a “gag order.” Many believe the term comes from days of yore when courts literally gagged defendants. While that has happened – even in modern times – it has never been a standard practice. It is very rare throughout history — although denying the right to free speech by court order has been a common practice. It has been applied to defendants, plaintiffs, lawyers and even the news media.
The real issue is how to determine when limiting a person’s free speech is necessary to avoid some harm and when it is used to merely protect state actors from criticism.
An example of the latter comes from ancient Rome. There was a law called Lex Maiestatis. It prohibited any speech or acts that would undermine the authority of the Roman government – or even insult its dignity. It was an offense that could get a person crucified – literally. In modern times, you see that sort of gag law in places like China and North Korea – or any number of other authoritarian regimes.
In America, gag orders have been issued – or at least requested – to prevent influencing juries (the murder case of Shepard v. Maxwell – 1966) … protecting classified information (the Pentagon Papers case of New York Times v. The United States – 1971) … protecting the identity of plaintiffs (the true identity of the plaintiff in Roe v. Wade – 1973). In the armed robbery case (Illinois v. Allen – 1970) the court ordered defendant William Allen to be physically bound and gagged in court for his continuous disruptive outbursts.
There are also gag orders to prevent intimidating witnesses (election interference case of United States v. Donald J. Trump – 2023). So, what about the Trump cases?
The first thing we must understand that the Trump case is unique. He is a candidate for public office – the highest office in the land. His opinions freely expressed – no matter how bellicose or repugnant they may be – are an important part of an informed public. Some may agree with what he says. Some may disagree – or even be offended. The public response will be determined in the polling places.
Is the public interest served by limiting what Trump says by court order?
The case of the United States v. Donald J. Trump is interesting because the initial limited gag order was put in place but not because his words were determined to have intimidated witnesses or the judge, but because the prosecutor claimed he COULD do such things in the future based on his established criticism of the process. In other words, the gag order was issued on the basis of what he might say rather than what he had already said.
In the more recent requests for gag orders, the prosecutors cited specific statements by Trump that they considered to be intimidating of witnesses, judges and prosecutors. Mostly they are a matter of interpretation. If you tell a judge, “If you convict me, you will never see your children again” that is clearly intimidation – and against the law. But, if you call the judge a partisan bozo, that may not be prudent, but is it intimidation?
There is no arguing against the fact that Trump is given to offensive, provocative, and controversial statements. It is in his DNA. The key question is whether such speech should be legally censored when the speech – no matter how repugnant – is not illegal or unconstitutional. And make no mistake, a gag order is censorship.
This is a secondary issue – especially in high visibility cases. Should Trump be limited in his public speech at a time when various political players are prosecuting the case against him in the court-of-public opinion for political advantage – and potentially influencing the jury pool against Trump? If Trump believes that a prosecutor is a partisan hack and the judge is a bozo, should he be prevented from giving his opinion? Or should a judge gag all the folks prosecuting Trump in the court-of-public-opinion? That is not my recommendation, but merely to make a point.
As a person whose biases are against the power of the state over the rights of individuals, I say “no.” He should not be threatened with legal punishments for stating his views. It is up to us the people to judge such comments. When it comes to candidate speech, we make that judgment on Election Day.
However, … if Trump – or any defendant – were to really threaten witnesses, jurors, or judges with potential harm, that is an entirely different issue. We do not need a gag order to address it. We have laws against such actions. When mobsters shake down a local business, we do not issue a gag order to make them stop demanding the money. We indict them for breaking the law.
In a sense, all laws that limit free speech are essentially gag laws. The contemporary use of most gag orders is a fudgy middle ground. What the person being hit with a gag order is saying is normally protected by law and the Constitution – and not otherwise prohibited by law. Gag orders summarily take away a person’s legal and constitutional right to say what they wish to say. If they were not in the grip of the judicial system, there would be no question of their right to say what they said.
Unbridled free speech can present a danger in specific cases. In those cases, we make speech illegal. Gag orders can serve a positive public purpose in many cases, but not always. I am not a proponent of eliminating gag orders entirely, but rather concerned that they can be a slippery slope leading to unwarranted censorship for the benefit of the state over the people – a bit like an American version of Lex Maiestatis.
My opposition to the expanded use of gag orders should not be taken as a defense of Trump on any of the charges he faces in multiple court cases. It is about the principle behind gag orders – and their use in cases in which the language is not otherwise illegal. My fear is that the excessive use of gag order is another example of America creeping toward unconstitutional restrictions on free speech.
So, there ‘tis.