The Sheppard case is distinguishable for a third reason not favorable to Trump: unlike Trump, Sheppard was not the primary cause or instigator of the circus-like atmosphere influencing the jury. It is hard to imagine another criminal defendant getting away with repeated personalized attacks on the prosecutors, judge and his clerk, and potential witnesses without being lawfully/constitutionally subject to a gag order and being held in contempt of court.
I am mildly surprised that there is no precedent addressing speech that amounts to bullying prospective witnesses. But as noted, Trump pushes new frontiers.
As a matter of principle it seems like it should be pretty obvious that in order to gag a defendent like Trump should require meeting a very high threshold.
As you point out, if he wasn't indicted he'd have a first amendment right to this speech provided it didn't meet the Brandenburg standard. Thus, Trump's first amendment rights are being curtailed because he's been accused of a crime which conflicts with the principal of innocent until proven guilty.
Moreover, even Trump's ability to influence jurors and witnesseses seems modest in comparison to the governments power in the usual case. If you're witnesses are also criminals (often true) every smile or irritated look from the police or prosecutor carries the threat of years in prison.
That doesn't mean there can never be a valid gag order but it does suggest that it should need to meet the same extremely high standards we expect other restriction on speech to meet. Sure, you could argue the unique situation of a court room means you discard the virtually unsurmountable presumption prior restraint is invalid but that's no reason not to still require the judge to determine that a high burden of proof that such a limitation is necessary has been met and that this is the least restrictive means of achieving it.
The Sheppard case is distinguishable for a third reason not favorable to Trump: unlike Trump, Sheppard was not the primary cause or instigator of the circus-like atmosphere influencing the jury. It is hard to imagine another criminal defendant getting away with repeated personalized attacks on the prosecutors, judge and his clerk, and potential witnesses without being lawfully/constitutionally subject to a gag order and being held in contempt of court.
I am mildly surprised that there is no precedent addressing speech that amounts to bullying prospective witnesses. But as noted, Trump pushes new frontiers.
I look forward to the next installment.
As a matter of principle it seems like it should be pretty obvious that in order to gag a defendent like Trump should require meeting a very high threshold.
As you point out, if he wasn't indicted he'd have a first amendment right to this speech provided it didn't meet the Brandenburg standard. Thus, Trump's first amendment rights are being curtailed because he's been accused of a crime which conflicts with the principal of innocent until proven guilty.
Moreover, even Trump's ability to influence jurors and witnesseses seems modest in comparison to the governments power in the usual case. If you're witnesses are also criminals (often true) every smile or irritated look from the police or prosecutor carries the threat of years in prison.
That doesn't mean there can never be a valid gag order but it does suggest that it should need to meet the same extremely high standards we expect other restriction on speech to meet. Sure, you could argue the unique situation of a court room means you discard the virtually unsurmountable presumption prior restraint is invalid but that's no reason not to still require the judge to determine that a high burden of proof that such a limitation is necessary has been met and that this is the least restrictive means of achieving it.