Trump wasn't put under a gag order, but he was told to watch his words

Former President Donald Trump 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 jeopardize the safety or well-being of any individuals.
Steven Hirsch/AP

The judge overseeing the 34-count felony case against Donald Trump in New York City said at Tuesday's arraignment hearing that he wasn't going to impose a gag order, leaving the former president and his legal team free to talk about the case.

Instead, he "encouraged" Trump to avoid saying or doing anything that could incite violence, create civil unrest or jeopardize the safety or well-being of any individuals. This came after the prosecuting attorney presented Judge Juan Manuel Merchan with printed examples of the former president's vocal, frequent and what the lawyer called "threatening and escalating" criticisms on social media of the case and its players, including the judge himself.

Merchan said he would not impose a gag order at the arraignment hearing even if it had been requested, arguing that it's among "the most serious and least intolerable on First Amendment rights." And he seemed especially disinclined to muzzle a candidate running for president, as Trump is, lest the move appear political or infringe on a candidate's ability to propagate a message.

"But now that I have made the request, if I were to be handed something like [the printed out examples of Trump's social media posts] again in the future, I have to take a closer look" at a gag order, Merchan warned.

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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 the courtroom. Since 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 during high-profile cases, especially if a defendant's charges have captivated the country.

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

But since Trump's case is extremely well known, a gag order designed to ensure an impartial jury isn't tainted by news coverage would more or less be useless, UCLA First Amendment Law Professor Eugene Volokh told NPR.

"This is not a case that could be kept quiet from the jury," Volokh said. Instead, he explained, a gag order from Merchan would perhaps be aimed at keeping the peace among protesters outside the courts.

A gag order is legally binding — Merchan's warning is not

Despite the judge's request at the hearing that Trump show restraint when discussing the case, hours later the former president delivered an address where he disparaged the case as "fake" and labeled the charges against him as election interference.

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

He also lashed out at District Attorney Alvin Bragg, calling him an a "criminal" and an "animal" and said 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 said, is irrelevant.

"This is not an order, so it has no legally binding effect," Volokh told NPR. "[Former] President Trump can say whatever he wants to say and wouldn't be held in contempt for this order."

Volokh said most defendants feel as if they are targets of an unfair process, including the ex-president, and that Trump, "like any other defendant and any other American, has the right to criticize the justice system."

Trump's lawyers have likely laid out what he can, cannot and should not do or say to avoid further legal troubles, Volohk said. But since the judge never issued an order, Trump could choose to disregard Merchan's request.

That, however, could come with consequences, like the issuance of a gag order, which does have legal ramifications.

Does a gag order violate the right to free speech?

In short, yes. But in 1976, the U.S. 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: what extent the media coverage could impact the right to a free trial; whether a gag order is the least restrictive measure that can be used; and whether that order would be effective at all.

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

What happens if someone violates a gag order?

That's up to the court.

Judge Amy Berman Jackson was presiding 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 lawyers and others involved from talking about the case in a manner that would "pose 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. She tightened the gag order, banning Stone from using social media altogether — no forwarding, posting or reposting, tweeting and from speaking about the case in general.

Individuals who test the courts can face swift retribution, like former Maryland State's Attorney Marilyn Mosby, who was held in contempt of 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 disregards his request. He could 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 a position of whether he has to do something binding," Volokh said. "It's very hard to tell because it's a matter of discretion."