Judge Merchan’s emotionally deranged and irresponsibly overbroad gag order, issued in two separate installments, the second building off the first, is both dangerous and unprecedented for its sweeping scope. It severely infringes on President Trump’s fundamental rights protected under the First Amendment to speak, and, wherever appropriate, criticize the trial proceeding as he sees fit. It is well-settled law that prior restraints on speech, of which gag orders are the textbook example, are – in the overwhelming majority of cases – unconstitutional as a form of government censorship.
Only in the rarest of cases has the Supreme Court upheld prior restraints on speech. In the few cases where the Court has upheld gag orders, a form of prior restraint, the order was necessary to achieve a compelling state interest. In other words, the Supreme Court has only permitted gag orders that satisfied the extremely high burden of strict scrutiny analysis. Where gag orders are at issue, strict scrutiny compels courts to limit the scope of the order to an articulable set of facts – the facts encompassing the order must be extremely particularized and limited in scope, and only considered as a final option if and when all other alternatives to help ensure a fair trial have been totally exhausted.
Thus, gag orders are only ever to be used as a last resort option, and only in the most exceptional cases when the right to a fair trial would otherwise be severely jeopardized without it. In the rare cases where a gag order would be appropriate, again the court must take great pains to ensure that it is structured in such a way as to be particularized to a highly limited set of facts that have a direct bearing on the integrity of the proceeding – and go no further. The gag order should always be temporary, with a definitive start time and expiration date, terminating whenever the danger that resulted in its issuance in the first place subsides, or immediately once alternative, less constraining methods that would ensure a fair proceeding become available, whichever comes first.
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