Trump and Bankman-Fried face speech limits as criminal defendants

What limits can a court place on a defendant’s free speech while he is out on bail pending trial? This tricky legal question is already taking center stage in the federal prosecution of Donald Trump for trying to subvert the result of the 2020 election, and it’s also come up in the legal proceedings against FTX founder Sam Bankman-Fried.

Judge Tanya Chutkan, presiding in the federal Trump case, has warned that if the former president makes public statements that might intimidate witnesses or otherwise interfere with a fair trial, she will move up the trial date. (The issue has also arisen following the Georgia indictment of Trump delivered this week, though for the purposes of this column I’ll stick to his federal trial.) In principle, Chutkan could even revoke Trump’s bail and send him to jail.

That’s what Judge Lewis Kaplan did recently when he revoked Bankman-Fried’s bail. Prosecutors asserted that Bankman-Fried had tried to intimidate a witness, his former colleague and girlfriend Caroline Ellison, by giving messages she had sent him to the New York Times. Bankman-Fried’s lawyers are appealing and will likely argue, as they did before Kaplan, that their client was exercising his First Amendment right to speak to the press.

What’s going on here? It’s well established that defendants charged with crimes keep their basic First Amendment right to assert their innocence. But the practicalities are much more complicated.

When you’re in jail pending trial, you lose many of your First Amendment rights despite being presumed innocent until proven guilty. You can’t freely associate with other people for purposes of expression, a basic First Amendment right. And you may be subject to other limits on expression, including what you can say, to whom, and through what means.

To detain you pending trial, the government must prove by clear and convincing evidence that you’re either a serious flight risk or a danger to the community. Witness tampering and obstruction count as a dangers to the community — either can result in bail being denied or revoked. It’s illegal to interfere with testimony or other aspects of the trial.

Under prevailing law, Trump can say that he is innocent and that the charges against him are bunk. But any statements that a court construes as an attempt to interfere with witness testimony can be punished, including by the revocation of bail.

So courts face a tricky balancing act. The orderly administration of justice must be protected. Yet trials, especially high-profile ones, are also part of the broader political and cultural debates of the time. Defendants are important speakers on the topic of their own trials and their voices shouldn’t be silenced.

The Supreme Court hasn’t clearly weighed in on how that balance should be struck. Nor have the courts of appeal laid out clear rules. My own view is that courts should bend over backward to maximize free speech for defendants, resolving close questions of potential interference in favor of free speech. Respect for judicial procedure is important in individual cases. But free speech serves the broader, systemic goal of keeping the public informed about issues arising from our criminal justice system.

Admittedly, the line isn’t always clear. Consider Trump’s statement on Truth Social, the day after he was federally indicted over election interference: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” That statement could be construed as intended to intimidate or obstruct witnesses. But it could also be understood as a more generalized, nonspecific challenge to the legal system, which might well be protected speech.

What about Trump’s statement that Mike Pence “has gone to the Dark Side?” On the surface, it sounds like free speech. Yet Pence could well be a witness against Trump, and the Jan. 6 rioters called for Pence’s head. Trump’s statement might thus be interpreted as a threat, intended to intimidate his former vice president.

In Bankman-Fried’s case, his lawyers told the judge that, by sharing Ellison’s communications with the Times, Bankman-Fried wasn’t trying to intimidate her. Rather, they argued, he was trying to give his own perspective and protect his reputation. Thus, they maintained, he was exercising his legitimate First Amendment rights.

Judge Kaplan disagreed and sent Bankman-Fried to jail. But on appeal, Bankman-Fried’s lawyers can say that the judge didn’t have enough evidence to sustain that conclusion. They can also argue that, as a matter of free-speech logic, Bankman-Fried shouldn’t be punished for speaking to a reporter in connection with his own case. The U.S. Court of Appeals for the 2nd Circuit might see the case as an opportunity to clarify the rules for pretrial free speech.

One common solution, preferable to jail, is for the judge to impose a remedy milder than imprisonment. Issuing what’s known as a protective order is a reasonably common approach, one used in both federal Trump trials and in Bankman-Fried’s case. A protective order isn’t an all-out gag order that bars all case-related communication. Rather, it limits what the defendant may say in regard to specific aspects of the case. But interfering with witnesses is always unlawful, no matter what.

Judge Chutkan faces a delicate balancing act in overseeing the trial for the Republican presidential front-runner. She tried to discipline Trump’s statements by threatening a trial date that might come before the 2024 election, saying that “the more a party makes inflammatory statements about this case, the greater the urgency will be that we proceed to trial quickly.”

Trump shot back on social media that the judge was “highly partisan,” “VERY BIASED AND UNFAIR,” and that “she obviously wants me behind bars.”

The risk for Judge Chutkan is that if Trump continues to make inflammatory statements, she will have to find a way to rein him in. Jailing Trump in the middle of his presidential run is hard to imagine. But under the law, Judge Chutkan has the power to do it.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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