The DA for Manhattan, Alvin Bragg, asked Judge Juan Merchan on Friday to keep the gag order against Donald Trump in place, even though the trial is over. If the judge does that, it is likely that Mr. Trump's lawyers will file an appeal. But this stupid gag order hurts more than just Mr. Trump. It goes against your and my rights under the First Amendment.
In the Supreme Court's view, the First Amendment says that no government body can limit the freedom of speech. There are two parts to this important right. The first is that the speaker has the right to say what he thinks. The second is the public's right to hear the speaker and decide what they think. This is less clear but just as important. Stephen Douglas wrote in Stanley v. Georgia (1969) that the Constitution guards the right to receive information and ideas. Justice Thurgood Marshall agreed with this statement.
The high court has been clear that the listener has the right to hear what the speaker has to say, but it has not been as clear about what should be done when this right is violated. Do voters who have not decided yet have the right to sue the New York courts for upholding the gag order and not letting them hear the Republican candidate's thoughts on how honest the witnesses against him were, how fair the jurors were, and whether Judge Merchan should be in charge of a trial while his daughter raises money for Democratic candidates? Because of the current gag order, Mr. Trump can not talk about these problems, not even during the debate next week.
President Biden will probably call Mr. Trump a "convicted felon" during the discussion. The Democratic Party has spent a lot of money on ads that talk about the crime sentences in New York. People who have seen the Democratic attack ads and watched the debate have the right under the First Amendment to hear Mr. Trump's full answers. We can judge what he thinks about the witnesses, the jury, and the judge's daughter. Just like no one is above the law, no one is above criticism of the court system either. We, not the New York courts, have the right to judge Mr. Trump based on what he says, even if he exaggerates or twists what he says. The First Amendment protects the marketplace of ideas.
This is important to keep in mind: a gag order stops someone from speaking. Prior restraints are against the First Amendment unless there are very special situations and important competing interests are at stake. In the Pentagon Papers case, New York Times Co. v. U.S. (1971), the Supreme Court did not agree with the government's claims and let the media print sensitive secret material. It may also be okay to put limits on things before they happen to protect ongoing jury cases, but the limits must only be on things that really threaten the rights to a fair trial. Any such risks that were here stopped when the trial did, if they ever existed. The judge has probably already decided on the term he will give, but even if he hasn't, letting the people (and him) hear what Mr. Trump has to say would not put the punishment process at risk.
An statement in the lawyers' filing says that the New York City Police Department has received 56 "actionable threats" against Mr. Bragg, his family, and his workers. Threats are a reason for the NYPD to move, but they are not a reason to keep Mr. Trump from speaking. In the past few years, there have been many threats against and at least one attempt on the lives of Supreme Court judges. However, the government can not stop people from criticizing their choices because of that.
Trump's team might ask the Supreme Court to look into the gag order at some point. The judges will decide if it does or not. But when they think about this important problem, they should think about the rights of the voters as well as the rights of the candidate and his party. If one candidate has a questionable sentence, they should not be able to unfairly use it against another candidate while the other candidate has a questionable gag order on one hand.
If a voter has not decided yet and is interested in what both Biden and Trump say about the fairness of the conviction, they should think about writing friend-of-the-court papers so that the judges can take their concerns into account along with Mr. Trump's issues.
Also, think about this possibility: It is close, but Mr. Trump loses. Polls suggest that at least some of his loss may have been due to how well the Biden ads about his conviction worked and how poorly Mr. Trump could have responded. After the election, a higher judge throws out the verdict and says the lawyer did a bad job. Think about how angry the people in the US who voted for Mr. Trump would be.
There would be a lot of pressure on the appeal judges to uphold the sentence just to keep this from happening. This is another way that the courts becoming more political is bad for the rule of law and due process.
