Manhattan District Attorney Alvin Bragg on Friday asked Judge Juan Merchan to keep his gag order against former President Donald Trump in place even though his trial has concluded. If the judge does so, Trump’s lawyers will almost certainly appeal the decision. But Trump isn’t the only victim of this ill-advised gag order. It violates your First Amendment rights and mine as well.
The First Amendment, as interpreted by the Supreme Court, provides that no government agency can abridge the freedom of speech. This important freedom has two parts. The first is the right of the speaker to express his views. The second, less obvious but equally important, is the right of the public to hear the speaker’s views and evaluate them. Justice Thurgood Marshall summarized Supreme Court case law on this subject in Stanley v. Georgia (1969): “It is now well established that the Constitution protects the right to receive information and ideas.”
Although the high court has been definitive about the right of the listener to receive the speaker’s information, it has been less clear about appropriate remedies for violations of this right. Do undecided voters have standing to sue the New York courts for maintaining the gag order and denying them the right to hear the Republican candidate’s views on the honesty of the witnesses against him, the fairness of the jurors and the appropriateness of Judge Merchan’s presiding over a trial while his daughter is raising money for Democratic candidates? Under the current gag order, Trump is prohibited from discussing these issues, even during next week’s debate.
It is likely that during the debate President Biden will call Trump a “convicted felon.” The Democratic Party has spent millions of dollars in campaign ads focusing on the New York criminal convictions. Those who watch the debate and who have seen the Democratic attack ads have a First Amendment right to hear Trump’s full replies. We have the right to evaluate his views on the witnesses, jurors and judge’s daughter. Just as no one is above the law, no one is above criticism regarding the legal process. Trump may overstate and even distort his complaints, but in the marketplace of ideas protected by the First Amendment, all of us—not the New York courts—have a right to judge him on what he says.
It is important to remember that a gag order is a prior restraint on speech. The First Amendment prohibits prior restraints except in the most extraordinary circumstances, in which important countervailing interests are at stake. In New York Times Co. v. U.S. (1971), the Pentagon Papers case, the Supreme Court rejected such claims by the government and allowed the media to publish sensitive classified information. Prior restraints may also be permissible to protect the integrity of continuing jury trials, though the constraints must be narrowly tailored to actual dangers to fair-trial rights. Here any such dangers, if they ever existed, ended when the trial concluded. The judge has almost certainly already decided on the sentence he would impose, and even if he hasn’t, allowing the public (and him) to hear what Trump has to say wouldn’t endanger the sentencing process.
The prosecutors’ filing includes an affidavit attesting that the New York City Police Department has logged 56 “actionable threats” against Bragg, his family and employees. Threats demand action from the NYPD, but they don’t justify gagging Trump’s speech. Supreme Court justices have been the target of many threats and at least one assassination attempt in recent years, but the government can’t suppress criticism of their decisions on that basis.
The Trump team may eventually ask the Supreme Court to take up the gag order. Whether it does is up to the justices. But when they consider this important issue, they should take into account the right of the voting public in addition to the right of the candidate and his party. The marketplace of ideas shouldn’t allow one candidate to take unfair advantage of a questionable conviction while the other candidate has one hand tied behind his back by a questionable gag order.
Voters who haven’t yet made up their minds, and who might be influenced by what both Biden and Trump have to say about the fairness of the conviction, should consider filing friend-of-the-court briefs so that the justices can consider their interests as well as Trump’s.
And consider the following possibility: Trump loses a close election. Polls show that his loss might have been attributable, at least in part, to the effectiveness of the Biden ads about his conviction, coupled with Trump’s inability to respond fully. After the election, a higher court reverses the conviction and condemns the prosecutor for having brought it. Imagine the outcry among Americans who voted for Trump.
There would be considerable pressure on the appellate judges to affirm the conviction precisely to avoid this troubling scenario. It’s another way in which the politicization of the courts poses a threat to due process and the rule of law.
Dershowitz’s latest book is “War Against the Jews: How to End Hamas Barbarism.”
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