In 1991, the US Supreme Court affirmed the state’s authority to prohibit trial participants from speaking about the trial if it risks ‘materially prejudicing’ the judicial process. The ruling was a part of the landmark case, Gentile v. State Bar of Nevada, which originally pertained to a ban on attorneys commenting on ongoing lawsuits. This verdict has been seen as the guiding principle for gag orders on all trial parties for more than three decades source.
However, this long-standing interpretation is being challenged by former US President Donald Trump’s current appeal of his gag order in the election interference prosecution, suggesting the Gentile ruling may not be the correct standard to follow. He posits that the set rules could only apply to lawyers. An alternative test he suggests is the Brandenberg incitement standard, derived from the Supreme Court decisions in 1976 and 1978. Notably, his status as a presidential aspirant could afford him additional rights when discussing a pending case in public.
In courtroom proceedings with Judge Tanya Chutkan, these arguments were expressed previously, but to no avail. Trump’s lawyers argued that there was no evidence indicating any witness, prosecutor, or court staff had been threatened or harassed following Trump’s public statements.
Trump sidesteps around a real threat, where a woman identified as Abigail Shry faces a possible indictment for leaving a threatening message for Judge Chutkan. His argument hinges on the technicality that the threat was not directed at “any witness, prosecutor, or court staff”. He alleges harassment from third parties as a result of his statements as purely speculative.
In neglecting to acknowledge his influential speech’s potential harm, Trump characterizes himself akin to civil rights activists who were wrongfully detained for peacefully exercising their First Amendment rights. The underlying issues in this case involve allegations against Trump for violating a Reconstruction Era statue as part of his allegations of vote fraud in predominantly Black cities.
Trump then alleges that Judge Chutkan’s order infringes on the First Amendment rights of “100 million Americans” – a statistic inclusive of the number of bots and actual users on platforms from which Trump was removed in January 2021. His legal team’s arguments, which failed in the lower court, continue to argue for his First Amendment rights.
Upon stay of the gag order by Judge Chutkan, Trump took to Truth Social to express his dissatisfaction, showcasing the potential impact his statements can have on cooperative witnesses and the potential trial process. Will Judges Millet, Pillard, and Garcia be swayed by these arguments that already failed to convince Judge Chutkan? Only time will tell.