What is a gag order? : NPR

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Former President Donald Trump is in court for his arraignment in New York Tuesday. The judge overseeing the case did not issue a gag order. Instead he warned against saying or doing anything that could incite violence, create civil unrest or endanger the safety or welfare of any individual. Steven Hirsch/AP hide caption

toggle caption Steven Hirsch/AP

Former President Donald Trump is in court for his arraignment in New York Tuesday. The judge overseeing the case did not issue a gag order. Instead he warned against saying or doing anything that could incite violence, create civil unrest or endanger the safety or welfare of any individual.

Steven Hirsch/AP

The judge overseeing the 34-count felony case against Donald Trump in New York City said at an arraignment hearing Tuesday that he would not impose a gag order, leaving the former president and his legal team free to discuss the case.

Instead, he “urged” Trump to refrain from saying or doing anything that could incite violence, create civil unrest or endanger the safety or well-being of any individual. This was after Judge Juan Manuel Merchan was presented with printed examples of the former president’s vocal, frequent and what the lawyer called “threatening and escalating” social media criticisms of the case and its players, including who is the judge himself.

Merchan said he would not impose a gag order at the arraignment hearing even if it were requested, arguing that it is among the “most serious and least tolerable of First Amendment rights.” And he seems especially reluctant to blow the horn of a candidate running for president, such as Trump, lest the move appear political or infringe on a candidate’s ability to get a message across.

“But now that I have made a request, if I am given the same [the printed out examples of Trump’s social media posts] again in the future, I have to look carefully” in a gag order, Merchan warned.

What is a gag order?

A gag order is imposed by a judge to restrict what individuals involved in a case can and cannot discuss outside of the courtroom. Because gag orders restrict the right to free speech, they are only issued to control the flow of information to ensure a fair trial, according to Cornell Law.

It can be difficult to find an impartial jury in high-profile cases, especially if the defendant’s cases have captivated the nation.

Notable instances where a gag order was issued by a judge include: the trial of Timothy McVeigh, the Oklahoma City bomber whose case drew national attention; the civil suit brought against former NFL star OJ Simpson; and the 2004 Michael Jackson child molestation case.

But because Trump’s case is so well-known, a gag order designed to ensure an impartial jury is not tainted by news coverage would be more or less useless, said the First Amendment Professor of UCLA Law’s Eugene Volokh on NPR.

“This is not a case that can be kept silent from the jury,” Volokh said. Instead, he explained, a gag order from Merchan was probably aimed at keeping the peace with protesters outside the courts.

A gag order is legally binding. Merchan’s warning is not

Despite the hearing’s judge asking Trump to show restraint when discussing the case, hours later the former president delivered an address in which he dismissed the case as “bogus” and labeled the allegations against him as election interference.

Trump pleaded not guilty to 34 counts alleging he falsified business records to hide damaging information before the 2016 presidential election. He maintained his innocence in a speech Tuesday, telling his supporters that the “only crime I have committed is to fearlessly defend our country from those who seek to destroy it.”

He also blasted District Attorney Alvin Bragg, calling him a “criminal” and an “animal” and saying he should resign. And he accused Merchan of being a “Trump-hating” judge.

Whether or not the former president violated the judge’s request is up for debate. But that debate, Volokh says, is irrelevant.

“It’s not an order, so it has no legal effect,” Volokh told NPR. “[Former] President Trump can say whatever he wants to say and he’s not going to condemn this order.”

Volokh said most of the defendants feel as if they were the targets of an unfair process, including the former president, and that Trump, “like any other defendant and any other American, has a right to criticize the system of justice.”

Trump’s lawyers likely laid out what he can, can’t and shouldn’t do or say to avoid more legal problems, Volohk said. But since the judge never issued an order, Trump may choose to ignore Merchan’s request.

However, that can have consequences, such as the issuance of a gag order, which has legal ramifications.

Does a gag order violate the right to free speech?

In other words, yes. But in 1976, the US Supreme Court developed a three-part test during the case of Nebraska Press Association v. Stuart used to evaluate the balance of the rights of a fair trial and freedom of speech.

For that test, a judge must weigh: the extent to which media coverage might affect the right to a free trial; whether a gag order is the least restrictive measure that can be used; and whether that order shall be effective at all.

However, most gag orders come from an agreement between both parties.

What happens if someone violates a gag order?

It’s up to the court.

Judge Amy Berman Jackson presided over the case against Trump adviser and confidant Roger Stone, who was later sentenced to more than three years in prison for witness tampering, lying to Congress and obstruction. Jackson issued a gag order preventing attorneys and others involved from discussing the case in a way that would “create a substantial likelihood of material prejudice,” NPR previously reported.

Stone violated Jackson’s order by speaking to the media and through a series of posts on Instagram and Twitter. He tightened the gag order, barring Stone from using social media without forwarding, posting or reposting, tweeting and from speaking about the case in general.

Individuals who try the courts can face swift retaliation, such as former Maryland State’s Attorney Marilyn Mosby, who was convicted in court and fined $1,500 for violating a gag order last summer , the Baltimore Sun reported in 2022.

Volokh said he didn’t want to speculate on what Merchan would do if Trump ignored his request. He may choose to issue a gag order, or he may find it best to err on the side of Trump’s right to free speech, even if Merchan has the power to restrict that right.

“A lot depends on what Trump says and what the judge thinks when he’s in position if he has to do something effective,” Volokh said. “It’s very difficult to say because it’s a matter of discretion.”

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