El Guapo wrote: ↑Fri Oct 27, 2023 2:10 pm
stessier wrote: ↑Fri Oct 27, 2023 12:45 pm
I disagree because of the special treatment speech gets because of the 1st amendment. It's why there are only 4 (I think) exceptions - true threats, defamation, incitement, and obscenity (which is basically only down to CSAM at this point). These groups are getting more narrowly defined, not broader. It's why speech laws continue to get struck down - can you even remember the last one that was upheld? Punish people after saying something - sure. But stopping someone from saying something is (justifiably) ridiculously hard.
She could make it really easy and say he's not allowed to issue true threats against any of the participants - but what's the point - that's already illegal. She could say he can't tamper with witnesses - but what's the point - that's already illegal. So what would any gag order accomplish that can't be accomplished through other, already established, means?
We all know that the reality of the situation is that any person who Trump speaks negatively about in social media is *going* to get threats from Trump's followers. So for one, this falls under incitement and probably under true threats as well.
I don't see how you could possibly argue this falls under the incitement exception.
Free Speech Center wrote:In Brandenburg v. Ohio (1969), the Court overturned the conviction of Clarence Brandenburg, a member of the Ku Klux Klan who had made inflammatory statements, by insisting that it would only punish advocacy that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Still, one might expect that, much as it did when it applied the gravity of the evil test, the Court would distinguish between the kinds of illegal actions advocated — that is, an incitement to walk on the grass would hardly seem to merit the same kind of attention as calls for bombings or assassinations. In Hess v. Indiana (1973), the Court applied Brandenburg and said that before an individual’s speech could fall under the unprotected category of incitement to imminent lawless action, the speech must lead to “imminent disorder.”
We may think something is going to happen, but there is no clear link to imminent disorder. Shoot, even the Jan 6th speech has a lot of questions around incitement and the link there was a lot clearer.
I also take issue that it was a true threat.
F.I.R.E. wrote:Requiring evidence that the speaker intended to threaten protects our national commitment to uninhibited debate and free expression. By contrast, the general-intent standard chills speech. Under a general-intent standard, speakers will have no choice but to limit their charged and vehement political expression due to the potential for prosecution — and conviction — because of the reaction of listeners. In the words of Justice Thurgood Marshall, “we should be particularly wary of adopting such a standard for . . . pure speech,” as doing so “would have substantial costs in discouraging the ‘uninhibited, robust, and wide-open’ debate that the First Amendment is intended to protect.”
Most federal circuit courts have nonetheless required only that a reasonable person, familiar with the circumstances, would find the statement threatening — the general-intent standard. But criminalizing the mere act of communication, regardless of the speaker’s intent to cause fear, is inconsistent with Watts and Black. It also fails to safeguard political hyperbole, attempts at humor, religious exhortations, and caustic commentary that are protected speech at the core of American politics and culture.
Requiring evidence that the speaker intended to threaten protects our national commitment to uninhibited debate and free expression. By contrast, the general-intent standard chills speech. Under a general-intent standard, speakers will have no choice but to limit their charged and vehement political expression due to the potential for prosecution — and conviction — because of the reaction of listeners. In the words of Justice Thurgood Marshall, “we should be particularly wary of adopting such a standard for . . . pure speech,” as doing so “would have substantial costs in discouraging the ‘uninhibited, robust, and wide-open’ debate that the First Amendment is intended to protect.”
If this is classified a true threat, then he'd never be able to speak.
Second, the law you're referring to is primarily derived from laws restricting speech - this is a court exercising its jurisdiction to regulate a trial and a criminal defendant before it, a defendant subject to the judge's specific jurisdiction because he's been indicted. Judges have a ton of discretion in areas like this. Third, even outside of First Amendment exceptions, it's not that the government can't restrict speech, it's that it has to meet strict scrutiny to do so, and I think this is a pretty unusual and compelling set of facts.
I concede there is specific jurisdiction, but that discretion isn't limitless - it centers around the orderly conduct of the trial. Why didn't the judge include themselves in the gag order? I contend doing so would have made it much harder to stand up to scrutiny under the 1st amendment. I think including the prosecutors might have been an over reach as well. And I don't see how this is an unusual trial if you consider all high profile trials as the population set. Why shouldn't he be able to leave the courtroom every day and say "I am innocent, the prosecution's case is a shame, everyone is lying, and the jury will vindicate me." That is not an unusual statement in high profile cases, but by your inferred intent standard, this is an attack on all the witnesses and instructions to the jury to nullify - which is why FIRE's proposition of requiring evidence of intent is much better in my eyes.
And the reason that the gag order is needed is because all Trump has to do is tweet something like "Mark Meadows is a RINO!!!" and he'll put the Eye of Sauron on Meadows. You can't write a narrowly tailored gag order that limits his ability to talk about Mark Meadows by subject matter, because all that's needed is to express Trump's disfavor. And honestly, it's just not that unreasonable to tell him to STFU about specific people who are likely to be witnesses in his upcoming trial.
You are using the normal people definition here for "unreasonable" that I don't believe is justified. Trying to control speech based on how we expect others to react to it at some undefined point in the future is just not something we should be trying to do.
Are there first amendment issues? Sure. I wouldn't be shocked if the gag order were overturned on appeal. But I think it's absolutely defensible as a legal matter.
I assume defensible here is equivalent to arguable, and I'll give you that. But I don't think it's a good argument.
