Did none of these prosecutors go to law school? Did Jack Smith, the federal prosecutor chasing Trump, not learn from his 9-0 Supreme Court censure in McDonnell v. US (2016)? Now, he seeks a “gag” order against Trump, Biden’s top political opponent, silencing him. Does that sound fair?
Where does one begin? Perhaps with granite caselaw, precedents from our past – and the First Amendment, crafted at the Republic’s birth to protect you, me, and – yes – Mr. Trump.
The First Amendment – let us be blunt – creates an overwhelming presumption in favor of free and unrestricted speech. That is why countless cases declare government restrictions on speech, or “prior restraint” – unconstitutional.
“Prior restraint” – the blocking of criticism before heard – for a political purpose, like nobbling an opponent – would be far, far worse, obviously unconstitutional.
Famously, early last century – mid-WWI – speech critical of government was restricted, when fear ran high about adversaries in our midst, sedition, and belligerent antiwar views.
In Schenk v. US (1919), the High Court shaped a “clear and present danger” test, suggesting speech could be restricted if specific acts of violence were pushed. The test did not survive.
Even before that, a brilliant jurist named Learned Hand – what a great legal name, eh? – ruled in Masses Publishing v. Patten (1917), that “if one stops short of urging” the law be violently violated, “one should not be held to have attempted to cause its violation.”
He was ahead of the curve. In 1969, the High Court returned to defending free speech, overruling the WWI-era restrictions in Brandenburg v. Ohio. Even a liberal, activist Court could not stomach government restrictions on speech, except under the most extreme circumstances.
In that case, a liberal bench was asked to decide if a KKK rally could be gagged – using a state law against advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” or for assembling for “criminal syndicalism,” that is, revolutionary strikes or uprisings.
Did such rough speech warrant “prior restraint,” trumping First Amendment rights? Obviously, those speakers were not running for president, which would be even worse, but free speech won.
The entire Court ruled against prior restraint – and in favor of the KKK’s right to organize, speak, profoundly offend, inflame, and distress, because that is a First Amendment right.
The Court set forth a two-pronged test, saying speech can only be blocked if the specific speech is “directed at inciting or producing imminent lawless action,” and is likely to “produce” it.
Speech cannot be forbidden, preempted, blocked, restrained, fenced, or restricted if the government presumes things for politics, ignores whether a criminal act is being advocated, ignores imminence, intent, and whether the speech would actually incite criminality.
Now, add federal laws against interfering with elections, such as 18 USC 595, and state laws forbidding election interference, such as Georgia’s Criminal Code 21-2-567, which bars actions by “any person who … acts in any … manner to intimidate any other person, to … refrain from voting at any primary or election, or to vote or refrain from voting for or against any particular candidate … or refrain from placing his or her name upon a register of electors.”
We should all be scratching our heads. Why? Because the prosecutor has now ignored all this history, and unapologetically sought “prior restraint” – a “gag order” –against the leading Republican presidential candidate. Is this America?
On what basis, after indicting an opponent on charges that eviscerate traditional understandings of First and Fourth Amendment rights, criminalizing political speech and protection in our homes, and plainly interfering with the ongoing presidential election, can they now gag him?
Biden’s team now seeks an order blocking Trump’s speech, barring objections to these flawed indictments, saying he might “undermine confidence in the criminal justice system,” “prejudice the jury pool,” or offer “disparaging and inflammatory attacks” about the process.
Have you ever heard of such a thing? First, call those who voted for your political opponent “enemies of the people” in a national address flanked by US Marines.
Then indict him in three jurisdictions, in what seems transparently political, constitutionally questionable, overtly offensive cases, asking briefings matches the primary schedule.
Finally, try to “gag” him, fearing he may “undermine confidence” in his opponent’s strategy or say things “disparaging and inflammatory” about it.
Mr. Smith, hang it up. Mr. Garland call off the dogs. Mr. Biden, wake up, read your caselaw. This turn is plainly intended to impair a fair election. It amounts to pure abuse, is unprecedented, outrage on outrage, and frankly is un-American. When will this misuse of legal process stop?
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
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