The First Amendment & Judge Merchan's Expanded Gag Order
What's in, What's Out, What's Forbidden
As everyone is now very familiar with the First Amendment and it’s current prominence in the news - from Gag Orders to Libel Laws, it is essential that Americans understand its lineage and applications.
The First Amendment is the “first” in the Bill of Rights ratified in December, 1791. It is often argued that because it is the first of all ten amendments in the Bill of Rights, it is therefore the most important, bestowing not only the right to freedom of speech, and press, but also to rights including freedom of religion, freedom of assembly, and freedom to petition government for redress grievances.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Yet, in recognition of all that it embues, we must also recognize that the First Amendment does “not” protect all speech. There are certain limitations, it is not absolute. Even though it is part of the Constitution by “amendment” certain exceptions decry abuse.
In the infamous and seminal case regarding the Klu Klux Klan in Brandenburg v Ohio (1969), the US Supreme Court (SCOTUS) held, per curiam (unanimously), there are limitations on speech. In its analysis, the high-court fashioned a two-pronged test to evaluate speech and acts related thereto. Determining:
1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."
Gag Orders and Free Speech
In the pending criminal case set for April 15 regarding the former president’s alleged falsification of business records regarding payments to silence an adult film acress from telling about her “escapades” with him while he was married to his current wife; the former president begins his tirade on social media accusing the Judge, as well as the Judge’s daughter of bias, putting them both and the prosecution in physical jeopardy of harm. In response to these unfounded claims, the Judge expanded the existing gag order on the former president to include his social media rhetoric directed at the Judge’s daughter and other family members of the prosecution - targeting them and placing them in danger by the former president’s supporters.
The “expanded” gag order acts to suppress inciteful speech under the First Amendment - “allowable” - after what the former president posted on social media “false,” and “defamatory speech” aimed at family members of the Judge and Prosecutor, and most importantly, it was likely to incite “imminent lawless action” against them. In such instances, suppression can be warranted under the Brandenburg rule.
What is the Crux of the Issues?
This case is currently set for litigation in two weeks, and is the first criminal trial this year for the former president. It pertains to falsification of business records and fraud (hush money) - alleging 34 counts of business fraud, payoffs all “allegedly” made to the Porn Star Stormy Daniels whom the former president (who appears to be a serial adulterer) had an illicit affair, and his Former Attorney, Michael Cohen (money paid by Cohen to keep Stormy quiet prior to the 2016 election. It appears the former president and his former attorney Cohen thought this revelation was necessary to suppress, as it occurred around the time the Access Hollywood tape (where the former president bragged about sexual assault) was released. Together all of this would have been devastating to his self-made brand as a right-wing, evangelical leader - eviscerating his chances of winning the 2016 election.
Why Expand the Gag Order Now?
The expanded gag order comes after the March 28 posts by Mr. Trump posting on social media, that Justice Merchan's daughter is a:
"Rabid Trump Hater" who "admitted to having conversations with her father about me". and Trump wrote that Loren Merchan “makes money by working to ‘Get Trump,’” He also wrongly accused her of posting a social media photo showing him behind bars - something that would be absolutely ludicrous for anyone in her position to do.
The former president is clearly trying to incite his base to rally against the Judge’s daughter, knowing that Ms. Merchan runs a digital marketing agency who works with a variety of clients, including Democratic candidates. As for his claims of bias against the Judge, it is public knowledge that Mr. Trump will have a jury trial, and the jury will be determining his guilt or innocence - not the Judge. Nevertheless, it appears he would rather play the victim, instead of taking his proper title as the potentially foiled aggressor.
On Who’s Account?
A New York state court system spokesperson told the Associated Press that Mr Trump's claims about the Judge’s daughter were false and that a social media account that made the posts no longer belonged to Ms Merchan. The court spokesperson went on to state:
The account on X, formerly known as Twitter, “is not linked to her email address, nor has she posted under that screenname since she deleted the account. Rather, it represents a reconstitution, last April, and manipulation of an account she long ago abandoned,” court spokesperson Al Baker said.
“Trumped-Up” Claims Against the Judge’s Daughter
It must be noted, the gag order that prosecutors had requested, bars Trump from either making or directing other people to make public statements on his behalf about jurors or potential witnesses in the upcoming April 15, hush-money trial. Notably, in the recent past, he has violated similar gag orders in other cases against him. This gag order specifically includes witnesses, his former lawyer turned nemesis Michael Cohen, and porn star Stormy Daniels - and now includes the judge and prosecutors’ families.
How Did We Get Here? State Action and Unprotected Speech
By virtue of the Fourteenth Amendment, the First Amendment's constitutional right of free speech and inherent freedoms applies in federal cases, and state cases as well. All government agencies and government officials are forbidden from regulating or restricting speech or other expression based on its content or viewpoint. Criticism of the government, political dissatisfaction, and advocacy of unpopular ideas that people may find distasteful or against public policy are nearly always protected by the First Amendment. However, there are some critical exceptions - categories of speech not protected by the First Amendment.
These “unprotected” categories of speech include: obscenity, child pornography, defamatory speech, false advertising/fraud, true threats, and fighting words/ incitement. Deciding what is and is not protected speech is reserved to courts of law.
Because the former president continues to bash witnesses and court personnel, putting them in danger with innuendoes and false information he indiscriminately posts on social media, Judge Merchan surely felt compelled to expand the “existing” gag order as there was no longer “a mere possibility” or “just a reasonable likelihood” that a threat exists challenging the integrity of the judicial proceedings - but as the Judge stated, “The threat is very real."
Of course, there will be push back on the legitimacy of the gag order and its expansion - but here it appears necessary to protect witnesses and the integrity of the court. Taking all this into consideration, it not only makes sense to keep all aspects of the “hush money” case quiet until its day in court - but the loudmouth due in court as well.
Copyright 2024 - Mary Kay Elloian, MBA, JD, Esq.
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