The Standard for Gagging Roger Stone (Or Any Other Criminal Defendant)

Intense media coverage of a high-profile criminal case can threaten an accused’s Sixth Amendment right to an impartial jury and pose unique demands on a court’s resources. So, it is not unusual for a court in these cases to limit what parties, lawyers, witnesses, and other trial participants are allowed to say outside the courthouse. Some courts (like the United States District Court for the District of Columbia) even have a rule that specifically allows a judge presiding over a “widely publicized or sensational criminal case” to restrict out-of-court statements that threaten the integrity of the judicial process.

However, in Roger Stone’s high-profile criminal case, he claims that Judge Amy Berman Jackson’s order that he not make any statement—on any subject—on Twitter, Facebook, or Instagram, goes too far. Stone is the long-time political advisor to Donald Trump who is facing criminal charges related to special counsel Robert Mueller’s Russia investigation. Stone is asking the U.S. Court of Appeals for the D.C. Circuit to reverse Judge Berman Jackson’s order, claiming it violates his First Amendment rights.

Judge Berman Jackson imposed her “gag order” after finding that Stone had violated her previous orders regarding out-of-court statements—including when he posted a photo on Instagram of the Judge with gun crosshairs above her head.

Regardless, Stone’s appeal raises an issue that neither the Supreme Court nor the D.C. Circuit has addressed: When the criminal defendant’s First Amendment rights are at stake, what is the standard for imposing a gag order?

If the D.C. Circuit takes up the issue in Stone’s case, it is likely to choose one of two different standards:

• The Court could establish a highly rigorous standard for imposing a gag order on a criminal defendant by requiring trial courts to first find that there is a “clear and present danger” that a defendant’s statements would prejudice a proceeding. The “clear and present danger” standard is the one the Supreme Court has established for gag orders aimed at the press, and the standard the Sixth Circuit has applied to criminal defendants.

• The D.C. Circuit could make it relatively easier for trial courts to place gag orders on criminal defendants, by requiring a finding of “substantial likelihood” of prejudice first. The “substantial likelihood” standard is the one the Supreme Court has approved of for attorney ethics rules regarding extrajudicial statements, and the standard the Fifth Circuit has said passes constitutional guidelines when applied to gag orders on criminal defendants.

The D.C. Circuit could also sidestep this matter entirely—by, for example, finding that Judge Berman Jackson’s order does or does not violate Stone’s First Amendment rights under any standard.

If it does take up the issue, it would seem that the fairer standard for the D.C. Circuit to adopt is the “clear and present danger” one—because imposing a gag order on a criminal defendant could make it harder than it already is to seat an impartial jury in a high-profile trial.

The government has significant advantages when it comes to setting the public narrative in a criminal case. It typically initiates a prosecution by issuing a press release and publicly filing its accusations in a charging document—like an indictment or criminal complaint. The government also sometimes uses “speaking indictments,” which provide far more detail about the government’s case than what is legally required, to tell their side of the story.

If criminal defendants are not permitted to make public statements, then they would have no way to counter the government’s narrative. So, when prospective jurors hear about the case in the media or Google the defendant’s name, they’ll learn of the government’s accusations, but not the defendant’s response to them—which could significantly undermine a criminal defendant’s Constitutional right to an impartial jury.

While it is unclear what the outcome of Roger Stone’s appeal will be, the standard the D.C. Circuit applies to Judge Berman Jackson’s order could have lasting consequences for criminal defendants’ First and Sixth Amendment rights.

August 12, 2019