Trump got hit by two gag orders from two different judges. The precedent in this area of law is severely underdeveloped, both because so few defendants get gagged, and of those who do very few have the resources or energy to mount an appeal. Jacob Sullum writes a
What’s good for the goose is good for the gander: if prosecutors are allowed to make public statements about their case, so is the defense. We just tried to get a partial gag order on the USAO in a high-profile case going to trial to stop them tainting the juror pool and you’ll be shocked to hear the judge ruled against it. Weird how only one side is allowed to try their case in the court of public opinion…
I thought there was a fairly robust concept of "prior restraint" which was generally a very big no-no in 1A law. I'm guessing in the area of gag orders it's under-tested like you said, but if we're starting with that as the default I'd assume that's a pretty big gully to dig out of.
Don't we already have mechanisms to deal with the kinds of things this is meant to cover? Having items under seal in a case, no-contact orders, laws against things like witness intimidation/tampering, general harassment / defamation.
This seems like a no-contact order where "contact" is broadened to directing others to contact, which can just mean talking about an individual.
There's several issue at play. Witnesses make themselves unavailable to testify all the time, either by making themselves scarce or just outright refusing. So when a witness disappears, it's near impossible to know why. That's why witness intimidation is extremely difficult to prove, and the only times I've ever seen charges is when someone was dumb enough to threaten a witness on a recorded jail call.
If you want to avoid prior restraint and only deal with intimidation after the fact (say, through criminal prosecution) then the penalty for intimidation has to be *at least* as bad as the offense on trial, plus several factors to account the difficulty in proving intimidation. If the penalty is already a life sentence for example, then there's no deterrence for the defendant to at least try to intimidate a witness into not testifying, because what's the downside?
So overall I don't see a practical solution to this concern except through a pre-emptive order (as a warning) or pretrial detention (which is the norm in criminal context).
What’s good for the goose is good for the gander: if prosecutors are allowed to make public statements about their case, so is the defense. We just tried to get a partial gag order on the USAO in a high-profile case going to trial to stop them tainting the juror pool and you’ll be shocked to hear the judge ruled against it. Weird how only one side is allowed to try their case in the court of public opinion…
I thought there was a fairly robust concept of "prior restraint" which was generally a very big no-no in 1A law. I'm guessing in the area of gag orders it's under-tested like you said, but if we're starting with that as the default I'd assume that's a pretty big gully to dig out of.
Don't we already have mechanisms to deal with the kinds of things this is meant to cover? Having items under seal in a case, no-contact orders, laws against things like witness intimidation/tampering, general harassment / defamation.
This seems like a no-contact order where "contact" is broadened to directing others to contact, which can just mean talking about an individual.
There's several issue at play. Witnesses make themselves unavailable to testify all the time, either by making themselves scarce or just outright refusing. So when a witness disappears, it's near impossible to know why. That's why witness intimidation is extremely difficult to prove, and the only times I've ever seen charges is when someone was dumb enough to threaten a witness on a recorded jail call.
If you want to avoid prior restraint and only deal with intimidation after the fact (say, through criminal prosecution) then the penalty for intimidation has to be *at least* as bad as the offense on trial, plus several factors to account the difficulty in proving intimidation. If the penalty is already a life sentence for example, then there's no deterrence for the defendant to at least try to intimidate a witness into not testifying, because what's the downside?
So overall I don't see a practical solution to this concern except through a pre-emptive order (as a warning) or pretrial detention (which is the norm in criminal context).