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PaperclipPerfector  1yr ago (text post)   25095 thread views

Culture War Roundup for the week of October 16, 2023

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Sure, but going after your judge's clerk is just one of those things. Kill a cop, the cops will be out for you like nothing else. Imprison a journalist, journalists will make it a cause celebre like nothing else. Go after a judge's clerk, the whole courthouse is going to come down on you.

Hard facts make bad law. Whatever constitutional deficiencies exist in the gag order, it's not 'lawfare' or the judge having it out for Trump for political reasons. It's crossing a red line that was super duper easy not to cross, that will make almost any judge make it personal. You're better off talking shit on the judge himself than talking shit on his clerk, in most cases.

I again completely agree with you. Trump's decision to go after a clerk was profoundly stupid and improper. Still, the gag order seems constitutionally overbroad and it would have been wise for the judge to exercise more restraint, given that this is a high-profile case and the gag order involves a fundamental constitutional right. I expect federal judges to exercise more judgment than cops or journalists in responding to these kinds of provocations, even if the provocation is clearly way over the line.

To clarify, the clerk talked about here is for Judge Engoron in the New York civil fraud case. His gag order was issued orally and only restricts "personal attacks on my members of my court staff", it doesn't even prevent Trump from shit-talking the judge. Do you think this order is constitutionally overbroad?

I haven't read the full transcript of the order so perhaps I have an incorrect impression of it, but I think it is overbroad, yes. According to the article you linked "Justice Engoron said that his statement should be considered a gag order forbidding any posts, emails or public remarks about members of his staff." Being able to speak out against government officials in a proceeding is an absolutely core aspect of what the 1st amendment protects. The right to say things like "the judge's law clerk is politically motivated and out to get me" should be inviolable, even though in this case it's an incredibly stupid thing to say. If the gag order was narrowly tailored to allow protected speech, e.g., Trump can criticize the law clerk but can't call on his followers to harass the clerk, I would feel differently.

Being able to speak out against government officials in a proceeding is an absolutely core aspect of what the 1st amendment protects.

You've changed my mind, I agree with your point.

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