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The topic of Court-ordered gag orders has come up recently in the news as former President Donald Trump makes his way through his numerous Court cases, and continues to receive gag orders.
There are essentially two types of gag orders:
- A gag order that says you cannot talk about the case during a trial.
- A gag order that says you cannot talk to the press while a trial is going on.
In Trump’s ongoing fraud trial in New York, Judge Engoron placed a gag order on him after he talked to the press during a recess. The Judge wanted to prevent Trump from publicly identifying those involved to protect their identity and to prevent them from being intimidated, which could affect his/her testimony.
The Legality of Gag Orders
Every American has a First Amendment right to say whatever they want to anybody about anything. Of course, there are exceptions, such as in cases of libel and slander, but as a general rule, Americans enjoy freedom of speech. However, in situations where people could become targets, or in situations where the case could be derailed by the wrong kind of attention, the judge may take pre-emptive measures to preserve a person’s right to a fair and impartial trial.
Rarely will a judge bring up a gag order by himself/herself which is what happened in Trump’s fraud case. He is being sued for fraud because he lied about his property values to obtain beneficial loans and interest rates. He posted a picture of the judge’s clerk standing next to a head Democrat and implied that the clerk was biased, drawing ire from his base. The Judge saw the picture and issued a gag order preventing him from making any statements or allegations against the Judge or his staff.
What Happens if You Violate a Gag Order?
If you disobey the gag order (as Trump did, twice), you can be held in contempt of Court. When you’re found to be in contempt, a judge can either fine you, incarcerate you, or both. In Trump’s case, he was fined.
While George W. Bush was president, a CIA agent was “outed” by a reporter. The Judge brought the reporter to the Courtroom and said, “Tell us who your source was for identifying this CIA agent.” The reporter refused, citing “newspaper privilege,” which the Judge said doesn’t exist.
The reporter still refused to reveal her source, so the Judge held her in contempt of Court and put her in jail. He said, “You’ll come to my Courtroom every day at 9 a.m. If you tell me who your source was, I’ll let you out of jail.” Eventually, she revealed her source.
This is what happens when you violate Court orders; the judge has the authority to impose an appropriate penalty.
I once had a case where my client was accused of failing to show up for several Court dates. The judge eventually found him in contempt, and put him in jail.
Remedial Contempt and Punitive Contempt
When someone is held in “remedial contempt” of Court, it means they’ll have the ability to cure the contempt. In the case of the reporter who withheld the name of her source, it was remedial contempt — she was able to cure the contempt by naming her source.
There is also “punitive contempt,” where someone already committed the contempt and the judge is choosing to punish you. For example:
Let’s say you are ordered to pay me $10,000. I argue that you could have paid it when you were ordered to do so, but you chose not to, instead buying a nice new bedroom set. Now the money is gone. The judge can say, “I will punish you for not paying on time by imposing a 10-day jail sentence.”
If this were a remedial situation, you might still actually have the $10,000. The judge might say, “You’re going to jail until you pay the $10,000.” Once you pay what is owed, you’ll get out of jail.
If you’re being held in contempt, or dealing with a criminal case, call our office today at 303-449-1873 to schedule a complimentary consultation and find out if Barre Sakol is the right representative for your case.