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The judge in former President Donald Trump’s trial in the federal election-subversion case has been asked by prosecutors to issue a gag order. The request demonstrates the conflict between defendant’s First Amendment rights and the fear he could spur his supporters to violence. IU McKinney Professor Margaret Tarkington discussed the issue with the New York Times for a story that published September 22. (subscription required)

Professor Tarkington predicted that any appeal of a gag order, should one be put in place, would likely survive if the judge in the case barred the former president from attacking witnesses and jurors. Restrictions against criticism of government officials will likely be more difficult because the First Amendment provides strong protections of that kind of speech, the professor said in the story.

“It’s a really hard argument in normal circumstances to say the government, who is prosecuting someone, can shut them up from defending themselves in public,” Professor Tarkington said in the story. “What makes this backward from everything else is that normally, in every criminal prosecution I can think of, the power imbalance is that the state has all the power and the defendant has none. But in this case, you have a defendant who has very significant power.”

Professor Tarkington is a well-known expert in the area of attorney free speech rights. Her book, Voice of Justice: Reclaiming the First Amendment Rights of Lawyers, was published in 2018. She is a dean’s fellow and co-director of the J.D. Program and Evaluation Assessment at IU McKinney, where she teaches professional responsibility, civil procedure, and federal courts.