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Monday, October 9th, 2023

Baton Rouge, Louisiana


Former President Donald Trump just can’t keep his mouth shut. He rants and raves against anyone who crosses his path.  He is a lightning rod of abuse and making attacks against anyone with whom he disagrees.  As someone who is served as a public official for 28 years, my best advice to him would be to tone down the rhetoric. But there’s a method to his madness. These attacks have served him well. It’s proven to be good politics.

But how about his attacks on the court system?  A gag order restricting his freedom of speech has been imposed by a New York judge, and federal prosecutors are now asking for a widespread gag order to basically shut Trump down for making any public statements of his innocence.  Are such gag orders constitutional? I think not. Here’s what the nation’s founding father, George Washington, told his officers of the army on March 15, 1783.

For if Men are precluded from offering their sentiments on a matter,

which may involve the most serious and alarming consequences,

reason is of no use to us; the freedom of speech may be taken away,

and dumb and silent we may be led like sheep to the slaughter.

 President Trump obviously has a unique problem. He’s running a second time for the highest office in the land. The election is only a year away, and he would be dramatically hampered if he were limited in what he had to say. And he’s not just shooting from the hip. Millions of his supporters feel the judicial system has dramatically overreacted in bringing many of the charges in the first place, let alone clamping down on what he can say.

In federal jurisdictions throughout this country, gag orders are rarely ever imposed. The general test that most courts observe is that there must be a “clear and present danger” or a “serious and immune threat” of prejudicing a fair trial.  Without yet declaring gag orders unconstitutional, the Supreme Court has come down strongly on behalf of a defendant in several related cases. In the 1987 case of U.S. v Ford, the court said: “A criminal defendant awaiting trial in a controversial case has the full power of the government arrayed against him, and the full spotlight of media attention focused upon him.  The defendant’s interest in replying to the charges, and to the associated adverse publicity, thus, is at a peek. So is the public’s interest in the proper functioning of the judicial machinery.”

In the past, Louisiana federal courts have not been immune from gag orders demanded by prosecutors. Some judges have even undertaken their own initiatives to impose them. One of the worst abusers of imposing gag orders against defendants was federal judge Frank Polozola, who presided out of the middle district of Louisiana.  He would impose gag orders without even having a hearing.  Here’s what often happens. The prosecution can file charge after charge, and motion at the motion, making all types of outrageous allegations that are front page news, yet the gagged defendant can say nothing. That’s just outrageous and un-American. Thankfully, recent Louisiana federal judges have ignored such an unconstitutional approach.

The U.S. Supreme Court has not directly ruled on whether or not a defendant in a criminal case can be gagged. It’s time they should. A fair trial is certainly a constitutional right.  But so is freedom of speech.  Our entire political system is on trial here.  In fact, I would argue that democracy is on trial. Forbidding the ex-president or any defendant to speak out in his or her defense flies in the face of fairness. We are supposed to have a better system and a better country than this.

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers throughout the nation and on websites worldwide. You can read all his past columns and see continuing updates at http://www.jimbrownla.com. You can also listen to his regular podcast at www.datelinelouisiana.com.











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