Gag Orders and Protective Orders – One Affects Free Speech, the Other Does Not

“Objection, Your Honor!” I am not a fan of TV court dramas, but the one thing these programs generally get right is that both sides to a criminal trial may make objections. More often than not, these objections relate to how evidence is provided in court—or whether the “evidence” can even be heard by a jury.

The rules of evidence are highly complex, but they are designed for only one purpose –to make sure that the jury only hears what will allow them to properly make an impartial decision concerning guilt. In order to guarantee a fair trial, the jurors should be hearing that evidence for the first time in court.

The purpose of a protective order is to safeguard both the process and the people involved.  One component of such an order is that the defendant should not attempt to intimidate witnesses or jurors. You would think that this is an unnecessary admonition. Sadly, some people need to hear that.

More important for our purposes is the less frequent requirement that some information that may become evidence should be withheld from the defendant.

If you have ever taken small children to a party, you understand far too well that you never know what’s going to come out of their mouths. One way to limit the potential damage is to not discuss sensitive matters within their hearing. This is a day-to-day example of a protective order. If they haven’t heard something, they can’t repeat it.

Some defendants do not need the admonition to not speak inappropriately. Other defendants have a history of speaking without a filter. In those cases, the prosecutor will ask that some information not be shared with the defendant personally. This part of a protective order is designed to protect the integrity of the jury process and trial. On other words, it is a legitimate attempt to insure that the trial is conducted in court and not in the media.

A defendant retains the right to speak about his or her innocence and to say that the evidence, at trial, will offer vindication. A protective order, then, is not a violation of one’s First Amendment rights to free speech, and the judge may impose penalties, including fines or even imprisonment, for defendants who will not honor the rule of law. In exceptional cases, when the defendant remains intransigent, the judge may take the next step and issue a gag order.

Gag orders severely restrict what a defendant may say prior to trial, beyond weighing in on the evidence. These are orders of last resort because they have the potential to prevent defendants from strenuously affirming their innocence. Due to the severity of the restrictions, issues of the First Amendment right to free speech may arise.

Therefore, the terms “protective order” and “gag order” should not be used interchangeably. You should be wary of anyone who attempts to confuse the two.

Parenthetically, lawyers may also be subject to protective orders and disobedience to those orders may subject the lawyer to additional disciplinary action, including disbarment.

Fundraising Stalled? File High-profile Lawsuits!

When you initially sign up on a social media site, you first provide basic information about yourself. You are then directed to check a box that says something like “I have read the Terms of Service and agree to their terms.”

By checking the box (whether you ACTUALLY read the terms or not), you have entered into a contract with the provider. As with other contracts, the provider normally has full discretion to decide how or when to enforce the contract’s terms. These contract terms are markedly different than the enforcement of a law, which much be applied fairly and equitably to all people.

This is where a lot of people get it wrong, often because they are being sold bad information. They assume that because laws must be enforced uniformly across the board that the same rules apply to contracts. This is simply wrong.

Donald Trump just filed “class action” lawsuits against Twitter, Facebook and Google under great fanfare. His chances of success on any of these suits are minimal at best. We will only discuss the highlights here.

We should eliminate a misnomer first. Just because you have filed a lawsuit, it is not automatically a class action, even though that sounds impressive. When a lawsuit is filed with claims similar to numerous people, one of the first things filed with the court is a REQUEST to certify the case as a class action. The point you are making is that the number of people who are similarly affected is so numerous that it is impractical to name all of those people as plaintiffs.

Assuming that the court agrees (and that is no sure thing), an attempt is made to identify the members of that class. These possible members are then individually notified and given the option to opt out. This process should be familiar. We have all received those notices. Class actions are seldom certified in contract disputes (because everybody checked the box), but that remains a possibility.

Next, the Terms of Service contract often states the location of the court where an aggrieved person may bring a lawsuit. It is usually in a court that is conveniently located to where the service provider operates. The Terms of Service provided that the proper court would be in California. Trump’s lawsuits were filed elsewhere (at least one was filed in Florida). A basic, basic, basic rule is to file suit in the correct court. Otherwise, the judge may very well dismiss the case for having filed it in the wrong place.

If I wanted to be cynical, and perhaps I am, I would suggest that the cases may have been intentionally filed in the wrong court. Then, when the case is dismissed, the plaintiff can do a “poor me,” complaining that the judge did not really want to hear the case and dismissed it on technical grounds. If that sounds familiar, it should. You heard that a lot when election challenge cases were dismissed for having been filed in the wrong place.

Maybe Trump can get past the jurisdictional issues. If so, the crux of these lawsuits appears to be that getting kicked off the social media platforms were attempts at censorship and a violation of Trump’s first amendment rights to freedom of speech. That makes for a great sound bite (and he repeatedly uses it), but it has questionable legal basis.

Try this analogy. I enter into a franchise agreement (contract) with Tupperware that gives me the exclusive right to sell their products in the greater Portland area. Other people have similar exclusive rights in other areas. Being a successful entrepreneur, I decide to sell products in New Hampshire in violation of the contract. Tupperware shuts me down. I complain that Tupperware has violated my first amendment rights. I have no chance of success in this lawsuit for two reasons: First, I was the one who violated the contract, and second, freedom of speech does not apply to private contracts. Even if I can show that other franchisees have dome similar things, it simply does not matter.

This analogy breaks down, of course, as analogies do. However, the central point is this. You can claim censorship and first amendment violations all you want, but the courts have consistently held that these claims do not apply in contract cases. Social media companies are private and not, to use legal jargon, “state actors.”

Finally, if you wanted to file a groundbreaking first amendment case, who would you hire as a lawyer? My guess is that you would enlist a top-notch Constitutional law specialist. None of them would touch this case.

So if these lawsuits are simply longshots (and that is being charitable), why were they filed? In his press conference, Trump said:

"I stand before you this morning to announce a very important and very beautiful, I think, development for our freedom and our freedom of speech — and that goes to all Americans. Today in conjunction with the American First Policy Institute, I am filing, as the lead class representative, a major class-action lawsuit against the Big Tech giants including Facebook, Google, and Twitter as well as their CEOs Mark Zuckerberg, Sundar Pichai, and Jack Dorsey."

Moments later, an email went out to a group of his supporters that read:

Pres Trump: I am SUING Facebook & Twitter for UNCONSTITUTIONAL CENSORSHIP. For a short time 5X-IMPACT on all gifts. Donate NOW: (with a link) 

You may ask yourself whether the timing of this fundraising email was coincidental. If you do, follow the link.