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Let's talk about the gag order Judge Berman Jackson put on the Roger Stone case. She's a very good judge and I'm a fan, but I'm not a fan of this order.

/2 First: what does the order do? It's not an overall gag order. It has two parts:
1. The LAWYERS can't make public statements "that pose a substantial likelihood of material prejudice to this case," and
2. The LAWYERS, PARTIES, and WITNESSES can't do so near the courthouse.
/3 So this does NOT prevent Roger Stone from being Roger Stone anywhere but on the courthouse steps.

The order is crafted to avoid the thornier constitutional problems.
/4 For instance, note that it limits the broad gag to the attorneys. Traditionally courts have more power over attorneys in matters before them, presenting less of a First Amendment issue.
/5 The narrower gag -- applying to hijinks on the courthouse steps -- applies to everyone. This takes advantage of a court's ability to have some control over its immediate vicinity with respect to conduct that could disrupt a case. Again, avoiding the thornier issues.
/6 My criticisms: first, Judge Berman Jackson claims it is to protect Stone's right to fair trial, but totally fails to engage the fact that Stone opposes the gag and wants to engage in the speech. That deserved analysis.
/7 My second criticism: the speech prohibited is hopelessly vague. What speech poses a "substantial likelihood of material prejudice to this case?" I have no idea and I'm a First Amendment lawyer. The lawyers -- let alone the parties -- have to guess where the line is.
/8 That vagueness necessarily chills a broad range of speech, because you're left to wonder how the judge might later, in a contempt or sanctions proceeding, subjectively judge what speech causes substantial risk of material prejudice.
/9 In short: other than signalling Stone and Company to take their circus a few blocks away before and after court, I don't see how this order actually achieves anything, and it's way too vague to be useful (or, perhaps, enforceable later). /end
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