Donald Trump's "Gag Order" Not Really a Gag Order

Blast Zone No. 59235 - 0 Comments
Set Up On:
Category: Judges - County/State
Last Known Home Address:
Atlanta, Georgia *****
Donald Trump's Bond Conditions:

Many are calling the terms of Donald Trump's bond in Georgia a "gag order" despite not looking like a gag order at all. Traditional gag orders prohibit people from discussing cases in public at all ( Examples include banning a defendant in a criminal case from talking about the case in public. Such orders typically have more to do with keeping the jury pool from being contaminated than they do with protecting witnesses. The terms of Trump's bond in Georgia contain several speech restrictions but stop short at being a real gag order.


Judge Scott McAfee has limited Trump's speech by banning him from making any "direct or indirect threats", intimidating witnesses, and communicating with co-defendants. The terms specify social media activity and apply to re-posting other people's content but appears pretty standard beyond that. The re-posting language and vague references to threats or intimidation have created problems in other courts recently sufficient to have an unconstitutional chilling effect on defendants.


In another recent case, FTX founder Sam Bankman-Fried was jailed for free speech after sharing evidence with a journalist. Bankman-Fried has always asserted his First Amendment right to combat the damage his case has done to his reputation by speaking to reporters. Unfortunately, an oath breaker in a robe appears to have jailed him based solely on subjective claims of non-physical intimidation. The chilling effect this will have on defendants until a higher court gets it right is devastating. Defendants can no longer feel free to speak out publicly in their own defense if doing so might open them up to subjective claims from witnesses that the speech made them feel intimidated in some way. Limiting speech to stuff not intended to threaten physical harm or physically intimidate someone is one thing, but nobody deserves to be muzzled just in case some snitch goes crying to the court with fears of what others will think of them if the defendant speaks freely.

Defendants have a First Amendment right to criticize anyone who uses the courts against them for choosing of their own free will to do so or assist others with doing so. Such criticism includes things like, "John Doe is a real POS for helping the government in my case, I wish he didn't do that." A statement like that is clearly honest opinion which the First Amendment protects. Some people file charges against their critics solely as a means of recourse against their protected speech. This author had this happen over a decade ago. Someone I was arguing with publicly provoked me into replying with a death threat. All of a sudden my criticisms of that person were used to show that I was a danger simply because I clearly intended to keep talking. It was like, "wink wink you're honor keeping him in pretrial detention is the only way to stop him from verbally attacking witnesses." I eventually had some supervised release conditions which included not speaking about people and deleting things I'd said which were true. The moral of the story seemed to be that if you want to shut me up just harass me until I do something about it and cry to the cops. Then you're a "victim" who feels "intimidated" by me exposing everything I find out as a result of you pressing charges. I eventually violated the censorship conditions largely to discourage the practice as counter-productive because if I'm in jail I can't remove anything and I will continue to say what I wish.

Trump needs to prepare himself for jail. This means he needs to prearrange ways to speak in direct violation of jail rules. I recommend hiring at least one lawyer whose job it will be to smuggle statements out of jail and handle business calls over the phone. The lawyer will need to be well paid to break the rules but that shouldn't be a problem for someone as resourceful as Trump.


The Supreme Court recently hinted that Section 230 of the Communications Decency Act likely shields social media users from legal liability for links they share. This issue came up shortly before Trump shared a link to another website featuring an image of him holding a baseball bat next to a picture of Manhattan DA Alvin Bragg (see Talking heads were quick to accuse Trump of physically threatening Bragg as if he'd created the image when in fact he merely shared a link to another website.

A couple months earlier SCOTUS Justice Amy Coney Barrett asked a litigant, "Lets say I retweet an ISIS video ... On your theory, am I aiding and abetting? And does the statute protect me, or does my putting the thumbs-up on it create new content?" The other side argued that she should be liable for creating new content by intentionally retweeting the video but the court ultimately decided against that party. If the court's majority feels the same way the New Hampshire Supreme Court felt a few years ago ( then she would not be liable for retweeting ISIS videos. She would not be liable because the court considered someone who retweets to be providing other people with a service by sharing other peoples content. If she would not be liable for the content under Section 230 then how could Trump be liable for doing the same thing with other people's content?

If Donald Trump shares a link to someone else's content which a witness in the case calls "intimidating" does that violate the terms of his release? I don't see how it legally could if Trump is not legally considered to be the content creator at all. Will the government have to prove that Trump intended to threaten the witness or would it simply be enough to say that a reasonable person in the witness' shoes would have felt intimidated by Trump sharing the content? To charge him with a new crime intent would be required but we are talking about release conditions which tend to have a much lower bar. In many cases pretrial release is revoked for minor things in the name of protecting proceedings. In that situation someone in Trump's position could find himself in a tough spot where he wants to protect his reputation by speaking out but feels intimidated by the threat of incarceration should his words also happen to result in complaints of intimidation from witnesses.


Donald Trump is not currently subject to a "gag order" in the true sense of the term but does face new liabilities should the judge consider his speech threatening or intimidating at all. The gray area is too big to put reasonable defendants on notice of where the line is.

Login to Comment using a Cop Blaster Account.


Register if you don't have a Cop Blaster account.