Thread by @rgoodlaw

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Thinking about the rule of law?

You maybe thought Michael Cohen was returned to prison for dining out.

Looks like he was reimprisoned for refusing to stop publishing a book about Trump.

I asked top #FirstAmendment experts for their views.

justsecurity.org/71370/top-expe…

2. I'll highlight some of the experts' views in this thread.

But first here's the NYT coverage of what happened and the agreement Cohen was asked to sign.

Text of the agreement: justsecurity.org/wp-content/upl…

(@maggieNYT @WRashbaum @nicole_hong reporting)
nytimes.com/2020/07/09/nyr…

3. A foremost First Amendment scholar @stone_geoffrey (@UChicago):

"clearly designed to suppress expression the gov't disapproves of and definitely does not further an important or substantial gov't interest related to Cohen's incarceration. It is thus patently unconstitutional"

4. @ACLU's Vera Eidelman:

"This restriction is almost certainly unconstitutional."

"Even if this were analyzed under the less speech-protective doctrine that applies to individuals who are currently incarcerated, it would almost certainly fail."

5. @JameelJaffer, Exec Director @knightcolumbia, Exec Editor @just_security:

"I don’t see how a prior restraint like this can be squared with First Amendment...This gag order is to suppress speech about the president, which is speech at the core of the First Amendment’s concern"

6. Professor Burt Neuborne (@nyulaw):

"a flat ban on a federal prisoner writing a book or article is, in my opinion, indefensible. This is just another Trump NDA"

7. Laura R. Handman:

"a profound affront to the First Amendment … all the more so when the content of what he would share would likely be … information that is particularly vital to an informed public as they decide whether the President merits re-election.”

8. Professor Jane Kirtley (@UMN_HSJMC @SilhaCenter @UofMNLawSchool):

“This is a prior restraint, pure and simple, and not only violates Cohen's rights, but also the right of the public to learn what he has to say.”

9. Prof. Roy Gutterman was more mixed in his assessment. Rather than excerpt or characterize his views, they're below.

The extensive comments from all experts are reproduced in full in the @just_security article at the start of this thread.

And one final, important point...

10/10 I asked @DavidCFathi, Director @ACLU National Prison Project how standard is the agreement Michael Cohen was asked to sign. His reply:

“I have never heard of such a spectacularly overbroad restriction on speech as a condition of probation or supervised release.”

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