“A Significant And Imminent Threat”

The New York Appellate Division for the First Judicial Department declined to disturb a trial court order in the Trump criminal case

We decline to exercise our discretion or to grant the relief that petitioner seeks here. It is well established that “[a]lthough litigants do not surrender their First Amendment Rights at the courthouse door, those rights may be subordinated to other interests that arise in [the trial] setting” (United States v Trump, 88 F4th 990, 1007 [DC Cir 2023] [internal quotation marks omitted] [the Federal Restraining Order Decision]). In the Federal Restraining Order Decision, the circuit court weighed the three key questions bearing on the entry of a restraining order against a criminal defendant: “(1) whether the Order is justified by a sufficiently serious risk of prejudice to an ongoing judicial proceeding; (2) whether less restrictive alternatives would adequately address that risk; and (3) whether the Order is narrowly tailored, including whether the Order effectively addresses the potential prejudice” (id.). The Federal Restraining Order is nearly identical to the Restraining Order issued against petitioner in the underlying criminal case (id. at 1028).

Petitioner brings this petition because he disagrees with where the circuit court drew the line in balancing the competing considerations of his First Amendment rights to free expression and the effective functioning of the judicial, prosecutorial and defense processes (id. at 1027-1028, citing Landmark Communications v Virginia, 435 US 829 [1978]). Weighing these concerns, the circuit court ultimately concluded that, given the record, the court had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process” (Trump, 88 F4th at 1014). This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.

The Federal Restraining Order Decision properly found that the order was necessary under the circumstances, holding that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process” (id. at 1012). First, the circuit court concluded that petitioner’s directed statements at potential witnesses concerning their participation in the criminal proceeding posed a significant and imminent threat to their willingness to participate fully and candidly, and that courts have a duty to shield witnesses from influences that could affect their testimony and undermine the integrity of the trial process (id.; see also Sheppard v Maxwell, 384 US 333, 359 [1966]). Justice Merchan properly determined that petitioner’s public statements posed a significant threat to the integrity of the testimony of witnesses and potential witnesses in this case as well.

(Mike Frisch)