Protective order poses dilemma for Tanya Chutkan as Trump could use it to falsely attack the criminal case as political
A federal judge is expected to consider on Monday whether to impose a limited gag order on Donald Trump in the criminal case over his efforts to overturn the results of the 2020 election, potentially restricting what he can say about potential trial witnesses and prosecutors.
The decision for US district judge Tanya Chutkan at the hearing, scheduled for 10am in Washington, comes with unique challenges given the potential for Trump to test the limits of a protective order or even flout it outright – opening the explosive sanctions question of whether to jail him in response.
Since Trump was charged in August with conspiring to obstruct the peaceful transfer of power, prosecutors have complained in court filings that Trump has made dozens of prejudicial statements that could intimidate people from testifying against him at trial and poison the jury pool.
Otoh, if they tell him to keep quiet and he doesn’t (is he even capable of shutting up? His own lawyers have never stopped him flapping his jaw so far), that makes things much easier: contempt of court is a simple matter to resolve.
Caveat that I’m not American, but wouldn’t that be spun as a free speech violation?
https://law.yale.edu/mfia/case-disclosed/when-silence-isnt-golden-how-gag-orders-can-evade-first-amendment-protections
This article is a good overview, but essentially, gag orders are seen as a way to deal with an inherent conflict between the right to free speech and the right to a fair trial, and a judge’s need to ensure a fair trial is seen as more important than a temporary restriction of free speech.
@BraveSirZaphod nailed it, but I wanted to add: Free speech is not unlimited, and it never has been. There are all sorts of classes of speech which rightly result in civil or criminal penalties. This notion that, when there is a conflict between rights, “free speech” always wins, is simply false.
What you said is correct, but just to elaborate:
The courts have established very specific categories where speech can be punished and/or restricted, including things like defamation, false advertising, and limited gag orders.
At the same time, they have made it nearly impossible to establish new categories of speech restriction. That’s why courts uniformly reject arguments along the lines of “We have already restricted X speech, therefore free speech is not absolute, therefore we can now restrict Y speech”.
Neither am I, but yes, probably it would be spun that way.
Possibly I was voicing my wish for a karmic result, rather than a politically pragmatic decision.
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