Manhattan District Attorney Alvin Bragg on Friday asked Judge Juan Marchan to uphold the gag order against the former president. Donald Trump The trial is over, but the order remains in effect. If the judge does so, Trump's legal team will almost certainly appeal. But Trump is not the only victim of this frivolous speech censorship order. It violates not only your but my First Amendment rights.
of First AmendmentThe Supreme Court has interpreted the law as saying that no government agency may abridge freedom of speech. This important freedom has two parts. The first is the right of the speaker to express his or her opinion. The second, less obvious but equally important, is the right of the public to hear and evaluate the speaker's opinion. Justice Thurgood Marshall Summary of Supreme Court decisions Regarding this matter Stanley v. Georgia (1969) “It is now well established that the Constitution protects the right to receive information and ideas.”
While the Supreme Court has been clear about the right of an audience to be informed by speakers, it has been unclear about the appropriate remedy for violations of this right. Do undecided voters have a right to sue a New York court for maintaining a gag order and denying the Republican candidate the right to be heard on the honesty of the witnesses against him, the impartiality of the jury, and the appropriateness of Judge Marchan presiding while his daughter is fundraising for the Democratic candidate? Under the current gag order, Trump is barred from discussing these issues, even in next week's debate.
In the debate, President Biden is likely to call Trump a “convicted felon.” Democrats have spent millions of dollars on campaign ads focusing on New York's convictions. Those who watched the debate and saw the Democratic attack ads have a First Amendment right to hear all of Trump's responses. They have a right to evaluate his views of the witnesses, the jurors, and the judge's daughter. Just as no one is above the law, no one is above criticism of the legal process. Trump may exaggerate and even distort his grievances, but in the marketplace of ideas protected by the First Amendment, we all have a right to judge him based on what he says, not a New York court.
It is important to remember that gag orders are prior restraints on speech. The First Amendment prohibits prior restraints except in very special circumstances where important competing interests are at stake. The New York Times Co. v. U.S. In the Pentagon Papers case (1971), the Supreme Court rejected such arguments by the government and allowed the media to publish classified information. Prior restraints may be permitted to protect the integrity of the ongoing jury trial, but the constraints must be closely tailored to the actual danger to the right to a fair trial. Here, such danger, if there was one, ended when the trial ended. The judge has almost certainly already decided what sentence to impose, and even if he had not, allowing the public (and the judge himself) to hear what Trump has to say would not jeopardize the sentencing process.
The prosecutor's filing said the New York Police Department had filed 56 “Viable threats“Threats against Bragg, his family and his employees demand action from the NYPD, but are not a reason to silence Trump's speech. Supreme Court justices have been the targets of numerous threats and at least one assassination attempt in recent years, but that cannot be used by the government to stifle criticism of their decisions.”
The Trump campaign may ultimately ask the Supreme Court to take up the gag order; whether that happens is up to the justices. But in considering this important issue, the rights of the candidates and their parties should be taken into account, as well as the rights of voters. The marketplace of ideas should not allow one candidate to unfairly exploit a questionable conviction while the other candidate has one hand tied by a questionable gag order.
Undecided voters who may be influenced by Biden and Trump's comments about the fairness of a conviction should consider filing an amicus brief to ensure the judge considers their interests as well as Trump's.
Now consider these possibilities: Trump loses a close election. Polls suggest that his loss may be due, at least in part, to the effectiveness of Biden's ads about his conviction and to Trump's failure to respond adequately. After the election, a higher court overturns the conviction and censures the prosecutors who convicted him. Imagine the outcry that would ensue among Americans who voted for Trump.
There will be considerable pressure on appeals judges to uphold the convictions to avoid this embarrassing scenario, another example of how the politicization of the courts poses a threat to due process and the rule of law.
DershowitzThe latest issue ofThe War on the Jews: How to End Hamas Brutality. “
The views and opinions expressed in this commentary are those of the author and do not necessarily reflect the official position of the Daily Caller News Foundation.
As an independent, nonpartisan news service, all content produced by the Daily Caller News Foundation is available free of charge to any legitimate news publisher with a large readership. All republished articles must include our logo, reporter byline, and affiliation with the DCNF. If you have any questions about our guidelines or partnering with us, please contact us at licensing@dailycallernewsfoundation.org.
