The Injustice of the Trump Gag Order Andrew McCarthy
https://www.nationalreview.com/2024/04/the-injustice-of-the-trump-gag-order/
Biden’s provocative speech is allowed because he didn’t direct anyone to do anything; Trump’s is suppressed even though he didn’t direct anyone to do anything.
New York state judge Juan Merchan has expanded the gag order he slapped on former president Donald Trump, the presumptive Republican presidential nominee, to include prohibiting Trump from speaking about his daughter, Loren Merchan, a Democratic political operative.
Merchan doesn’t contend that Trump threatened his daughter. Manhattan district attorney Alvin Bragg, the elected progressive Democrat who sought the gag order and later asked for it to be ratcheted up, has not accused Trump of incitement, much less sought to arrest and charge him for such an offense. How could he? There is no evidence that Trump called for violence or even verbal attacks against Merchan’s daughter.
Instead, Merchan rationalizes that Trump is a powerful figure whose followers construe his statements as directives to resort to intimidation and, potentially, violence — even if the statements do not literally say any such thing. Ergo, Trump must be silenced as if he is guilty of coercion.
According to Merchan, Trump must be treated differently because he’s like a government, not an ordinary defendant: “The conventional ‘David vs. Goliath’ roles are no longer in play as demonstrated by the singular power [Trump’s] words have on countless others.”
But wait, isn’t Trump just using his “bully pulpit”?
After all, only two weeks ago, the Biden administration told the Supreme Court that when the government uses its “bully pulpit” — when it uses the singular power of its words to persuade others — it is not to be blamed for the abusive action of others as long as it hasn’t specifically directed them to take any such action.
The case (Murthy v. Missouri) results from a lawsuit brought by Louisiana and Missouri. The states accuse the Biden administration of intimidating social-media companies into suppressing political speech. The states do not claim that federal agents ordered the platforms to remove speech of which the government disapproved — at least, not exactly. Rather, they reason, Merchan-like, that the government’s exhortations, taken in context, had a coercive effect that induced the tech companies to act in violation of citizens’ rights.
No, no, countered the Biden Justice Department. Deputy Solicitor General Brian Fletcher explained to the justices that the administration was simply using the “bully pulpit.” Its agents weren’t coercing anyone. They were just using their powerful soapbox to convey a message that was “persuasive” — not coercive, not at all. If the social-media companies took action based on being persuaded, that’s on them. Don’t go blaming the Biden administration, because it didn’t order anybody to do anything.
One can never be certain how a case is going to go based on the oral argument, but it sure sounded like the Court is going to side with the Biden administration. (The oral-argument transcript is here; see also this useful SCOTUSblog summary by Amy Howe.) Why? Well, some of the justices would avoid the knotty constitutional issues the case raises by finding that the states did not have standing to sue. Mainly, though, the vexing problem is the difficulty of defining a standard that wouldn’t do more harm than good — a standard that, under the guise of banning potentially abusive government speech, would outlaw government speech that the law should encourage: here, the communication of information that could protect the public from harm.
Let’s say the FBI learns that terrorists may be plotting an attack in which they will use social media to lure innocent people to the attack location on a false premise. Or let’s say the agents learn that China’s intelligence service may be conspiring to use social media to steer users toward a financial institution from which China can pilfer their data. The FBI’s intelligence is not ironclad, but it’s enough to raise concerns that great harm could be done. So the bureau decides to share that information with Big Tech companies, but it doesn’t purport to direct those companies to do anything — it just requests that they alert the FBI if they observe suspicious communications patterns. But the companies — which are private businesses and thus not subject to First Amendment restrictions — take it on themselves to close down some accounts and suppress posts they suspect may be facilitation of terrorism or of Chinese disinformation.
This would be a constitutional violation if the government did it directly; should it not be if the government induces private third parties to do it?
The Biden administration is saying: We didn’t induce the companies to do anything; we just voiced our concerns. We didn’t direct them, and we’re not responsible for what they do. The Court seems sympathetic to that argument. That’s not because the justices approve of government-induced speech suppression; it’s because when important interests are in tension, judicial line-drawing is hard. If you muzzle the government, even worse harms could result.
Fair enough . . . but what about the analogous Trump trade-offs? He is on more solid ground than the Biden administration. Unlike the government, he has a constitutionally protected right to speak. He also has constitutional rights to campaign for the presidency and to mount a defense against criminal charges. The public, furthermore, has a paramount interest in robust debate in connection with an election for president — the most significant office in the national government.
Given all that, how is it appropriate to muzzle Trump when he didn’t direct anyone to do anything? If the Biden administration is not responsible for the excesses of social-media companies in responding to its “persuasive but not coercive” rhetoric, then how is Trump responsible for the excesses of his overzealous followers?
Why isn’t the answer that there is no standard under which Trump’s nonthreatening speech could be banned without unconstitutionally undermining the public’s interest in robust campaign rhetoric and Trump’s rights to campaign and defend himself?
As I detailed Saturday, Judge Merchan, at the urging of DA Bragg, issued a gag order against Trump. Merchan was undoubtedly outraged by one of Trump’s Truth Social diatribes, which inveighed against the judicial bias that Trump claims is aiding and abetting the blatantly politicized prosecution against him. In that vein, he pointed out that Merchan’s daughter, Loren, is a self-proclaimed progressive political operative; her company, Authentic Campaigns, promotes top Democrats who are arch-rivals of Trump’s — indeed, who often define themselves by their loathing of Trump.
Trump isn’t making that up.
Nevertheless, at Bragg’s prompting, Merchan has now expanded the suppression of Trump’s First Amendment free-expression and political-speech rights to include commentary about family members of the judge, the district attorney, and their staffs.
Merchan rationalizes that if Trump is speaking, it must be for purposes of catalyzing action by his followers — specifically, intimidation. That is, even if Trump is merely making an attempt at political persuasion and does not suggest, much less order, that anyone take any action, his words must be construed as an effort to subvert the judicial process by putting those involved in the prosecution in fear of harm to their family members. It cannot be, as Trump contends, that the New York judicial process is corrupt; in Merchan’s telling, that process is pure as the driven snow, and Trump is trying to corrupt it.
This is ridiculous. Presumably, Merchan has a number of family members. Trump has mentioned only one of them — the one who is a Democratic apparatchik, the one whose clients are fundraising off the case her father is presiding over. Trump didn’t encourage anyone to take action against Loren Merchan. He mentioned her in connection with (a) a legal contention that the judge should recuse himself due to political bias; and (b) a political argument that Biden and his fellow Democrats are weaponizing federal and state law-enforcement processes against their top political opponent — strategically indicting him to force trials in the middle of the 2024 campaign — and that Merchan is one of the anti-Trump Democratic judges who is letting the politicized prosecutors get away with it.
You may agree or disagree with Trump — that’s irrelevant. The point is: He is entitled to make these contentions in his defense and in his campaign. Merchan is interfering in Trump’s rights to make these claims publicly. He is interfering with the public’s interest in assessing whether Trump is being prosecuted due to partisan rather than law-and-order motivations — that’s a salient issue in the 2024 election.
More to the point, Democrats can’t have it both ways. It can’t be that Biden’s provocative speech is excused as harmless because he didn’t explicitly direct anyone to do anything, but that Trump’s provocative speech must be suppressed even if he didn’t direct anyone to do anything.
“But we like Biden and we don’t like Trump” is not a workable constitutional standard.
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