Judge Engoron, the New York State Supreme Court judge presiding over the New York State Attorney General’s (AG) civil lawsuit against Donald Trump, his sons, and certain of his businesses, imposed a “gag order” during the case to limit what Trump could say during the trial. Trump was sanctioned twice for violating the gag order based on remarks made about court staff.
Trump appealed the gag order on the grounds it infringed upon his First Amendment right of free speech. Pending appeal the appellate court stayed the gag order such that it is not presently effective.
The AG has asserted that restrictions on Trump’s right of free speech are appropriate on the grounds that Trump’s out of court remarks are inflammatory and have incited threats of violence to Judge Engoron and his staff.
In briefing filed today, Trump asserted “[s]ince before the trial began and continuing thereafter, certain individuals, to whom there is no indication Petitioners have any connection or exercise any control, have engaged in behavior that Petitioners do not condone.” Trump has contended that he should not be held responsible for the alleged misconduct of third parties that result from what he asserts is his constitutionally protect right to free speech. His briefing can be found here: https://www.documentcloud.org/documents/24175724-trump-gag-order-filing
A gag order is generally a legal order that prohibits attorneys, their clients, and witnesses in a pending matter from talking about a case to the public. A court considering the imposition of a gag order must overcome a heavy presumption that a gag order would constitute a prior restraint on constitutionally protected free speech rights of the would-be speaker. However, under appropriate and narrowly tailored circumstances, gag orders do not run afoul of constitutionally protected rights and may be granted where a court makes adequate factual findings and considers a competing interest, such as another constitutional right or in the instance of a clear and present danger that a miscarriage of justice might arise.
Once fully briefed, the appellate court may vacate the gag order, affirm the gag order and reinstate it, or narrow the gag order.
