Are gag orders constitutional?

[Rogue AI]

Mass murderers are not given any opportunity at bail. Bail also comes with contingencies, like you’re not allowed freedom of travel.

They are given the opportunity to appeal the lack of bail. Nor can the restrictions be unreasonable or violate the Constitutional rights of the defendant.

 

[TNHarley]

Then chose another example, because absolute free speech is not a thing according to constitutional law.

define absolute free speech

 

[TNHarley]

The constitution was never written to include every possible scenario, or to micro-manage every right and privilege.
For such a detailed constitution look at India, whose constitution is 146,385 words (thirty times as long as ours).

Nope. The constitution was written to limit the government.

 

[meaner gene]

The point of the 2nd amendment is to allow for self defense.
Those behind tall walls and surrounded by armed guards are perfectly safe and don't need any more guns.

The 2nd wasn't about self defense. It was about protecting the states from the federal government, and from their own populations.

A well regulated Militia, being necessary to the security of a free State,...

Clauses have meaning.

 

[Freedomisneverfree]

I think free speech needs to be protected. If you give them an inch, they will take a mile and you will have to be careful "whatever" you say....

 

[Marener]

They are given the opportunity to appeal the lack of bail. Nor can the restrictions be unreasonable or violate the Constitutional rights of the defendant.

Same can be said for a gag order.

Both are perfectly constitutional.

 

[Rogue AI]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Where does it say anything about pre-trail confinement without the possibility of bail?

What? Trials are not immediate all bail is pre-trial. Anyone can appeal the lack of bail. You need to try harder.

 

[meaner gene]

The mob behavior of J6 didn’t “attack” a seat of government, either.

Maybe they confused the nations capitol with the 7-11 down the street.

 

[Foxfyre]

Not exactly. They are forms of speech which can be addressed in civil court. But they wouldn’t involve criminal prosecution.

“Speech” which can be criminally sanctioned include things like revealing national security secrets, lying under oath, “yelling fire (falsely) in a crowded theater,” and making threats of violence against individuals, in many circumstances.

Agreed.

You're right. I should have clarified the difference between federal and state. There are no criminal defamation or insult laws at the federal level. However right or wrong, the 14th Amendment did extend the federal right to due process as mandatory in the States and SCOTUS over the years has generally applied other of the Bill of Rights to the states.

But many states do have laws prohibiting saying mean things about people which the ACLU strongly protests and opines is unconstitutional. Curiously though, according to their map at this link, New York has no such law which does suggest a gag order could be seen as malicious prosecution with no foundation of law to fall back on.

Map of States With Criminal Laws Against Defamation

Twenty-four states have laws that make it a crime to publicly say mean things about people, with penalties ranging from fines to imprisonment. These laws violate the First Amendment and are disproportionately used against people who criticize public officials or government employees. The ACLU...

www.aclu.org

 

[Rigby5]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Where does it say anything about pre-trail confinement without the possibility of bail?

You miss the point.
Since the source of all legal authority comes from the defense of other, then you do NOT look at legislation.
All you have to look at the risks to others.
What you find in legislation is the minute details, exceptions, limitations, etc., not the generalities.
Obviously is a person is threatening others, they can be held in jail without bail.
But there has to be victims and reasons for them to fear.

 

[BackAgain]

The past is prologue.

"Threats of violence have escalated after the fourth criminal indictment of former President Trump. In Georgia, grand jurors’ names, addresses and images were released online by Trump allies and a racist death threat against the judge presiding over the federal Jan. 6 case led to an arrest. Laura Barrón-López discussed the alarming trend and its impact on civil servants with Tammy Patrick.

Trump conspiracies inspire threats against judges, jurors and election workers

Threats of violence have escalated after the fourth criminal indictment of former President Trump. In Georgia, grand jurors’ names, addresses and images were released online by Trump allies and a racist death threat against the judge presiding over the federal Jan. 6 case led to an arrest. Laura...

www.pbs.org

First, it was Ruby Freeman, a Fulton County election worker targeted and smeared by Trump and his allies in the aftermath of the 2020 election.
The Georgia indictment details how members of the enterprise traveled from out of state to harass Freeman, intimidate her and solicit her to falsely confess to election crimes that she did not commit. And, last week, a racist death threat against the judge presiding over the federal January 6 case led to an arrest.

It's a familiar pattern. Trump posts vitriolic attacks and conspiracies. Then his most ardent followers stock or threatened the targets of those attacks."

Zzz

The past sometimes is prolog, but that has nothing to do with this conversation.

And people get worked-up over lots of issues. That’s not a reason to shit down free speech. From our earliest days as a nation, we have upheld the principle that it is more speech (debate and reason) which is the best remedy for speech with which we disagree.

By your logic, in the days before the Civil War speech in opposition to slavery would have been properly sanctioned as “inflammatory.” It was inflammatory. So what? The First Amendment still supported the right of abolitionists to state their case. Thank God.

 

[Rigby5]

Gag orders aren’t arbitrary. There are hearings and rules.

Except I see no valid hearings or rules in this case.
If a court has a social bias, that is something everyone has a right to know about.

 

[meaner gene]

define absolute free speech

Bribery.

 

[my2¢]

There are no jurors in this case, and the people have a right to be totally informed.

Thanks, I haven't been following the case. The whole thing seems bogus to me. Of the impeachments and all the other crap they've tossed at Trump, the only one that has roused my interest is the case in Georgia.

 

[BackAgain]

You're right. I should have clarified the difference between federal and state. There are no criminal defamation or insult laws at the federal level. However right or wrong, the 14th Amendment did extend the federal right to due process as mandatory in the States and SCOTUS over the years has generally applied other constitutional provisions to the states.

But many states do have laws prohibiting saying mean things about people which the ACLU strongly protests and opines are unconstitutional. Curiously though, according to their map at this link, New York has no such law which does suggest a gag order could be seen as malicious prosecution with no foundation of law to fall back on.

Map of States With Criminal Laws Against Defamation

Twenty-four states have laws that make it a crime to publicly say mean things about people, with penalties ranging from fines to imprisonment. These laws violate the First Amendment and are disproportionately used against people who criticize public officials or government employees. The ACLU...

www.aclu.org

I am pretty sure we agree. I don’t like the ACLU. But I do recognize that they are committed to free speech. And, for the most part (with some limited exceptions only), I approve of their position.

They tend to be more 1st Amendment freedom of speech absolutists than I am. But we’re not that far apart.

In the case of judicial gag orders, it is the government (a judge is just a part of our government, after all) which seeks to impose its power to prevent speech. If there is any justification for such governmental action at all in light of our Constitution, it would have to be a crucial justification. In civil cases and especially in non jury trial settings, I contend that no such crucial justification exists.

 

[meaner gene]

Zzz

The last sometimes is prolog but that has nothing to do with this conversation.

And people get worked up over lots of issues. That’s not a reason to shit down free speech. From our earliest days as a nation we have upheld the principle that it is more speech (debate and reason) which is the best remedy for speech with which we disagree.

By your logic, in the days before the Civil War speech in opposition to slavery would have been properly sanctioned and”inflammatory.” It was inflammatory. So what? The First Amendment still supported the right of abolitionists to state their case.

You confuse debate with incitement to riot.

 

[Robert W]

Since nobody else wants to answer, I will.

Yes, I think they are.

The 6th Amendment protects the right to a speedy and public trial, by an impartial jury. The purpose of the Gag Order is to ensure that final part.

The Right to Free Speech is not absolute, if it were we would not have laws against slander and libel. It would not be against the law to be sitting on a plane and say you have a bomb on you. Most people agree with these restrictions.

I would say a gag order during a trial is in the same vein as the restrictions above.

Trump has a major problem that he is trying hard to overcome.
Bigotry on the part of the Media at large. Trump has the disadvantage of the media going after him starting out prior to him being president. It has built up to the point that you are either passionately for Trump or against him.

Gag orders can be challenged. Trump fortunately has the money to afford the challenge expenses.

 

[BackAgain]

So…,this is about your feelings?!

Not at all. It figure you’d fail to understand any of the discussion.

 

[meaner gene]

Gag orders can be challenged. Trump fortunately has the money to afford the challenge expenses.

Trump has to fight it in the court of public opinion, because he's running out of lawyers.

 

[Rogue AI]

Same can be said for a gag order.

Both are perfectly constitutional.

The gag order cannot violate someone's rights. Gag orders aren't in the Constitution, free speech is.