Trump’s Retweets Are Criminal Contempt of a Gag Order–People v. Trump

As you surely know, the state of New York is prosecuting Donald Trump for allegedly falsifying business records in connection with the hush-payments to Stormy Daniels. The judge overseeing the case is well aware of Trump’s shambolic approach to high-stakes litigation, including his overt attempts to publicly pressure the judge, the judge’s staff, jurors, his litigation opponents, and witnesses. At the prosecution’s request, the court ordered Trump to restrict any such extrajudicial efforts (see appendix below for the text). To the surprise of no one, in a manner not dissimilar to a toddler’s response to a parent’s admonition, Trump has tested the “gag order” in a variety of ways.

This blog post focuses on 7 times Trump “retweeted”/reposted third-party statements on his Truth Social account. The court concludes that Trump’s reposts constituted criminal contempt of the gag order:

a repost, whether with or without commentary by the Defendant, is in fact a statement of the Defendant. The issue of “reposting” appears to be a question of first impression. Lacking legal authority to guide its decision, this Court must, as defense counsel stated at the hearing, rely on common sense.

Both the Truth Social account and the official campaign website, exclusively represent the opinions and views of the Defendant, and neither is an open forum for others to post their own content. Defendant curated the posts at issue and then took the necessary steps to publish the posts on his Truth Social account and on his campaign website. In doing so, he endorsed the posts with one purpose in mind to maximize viewership and to communicate his stamp of approval….there can be no doubt whatsoever, that Defendant’s intent and purpose when reposting, is to communicate to his audience that he endorses and adopts the posted statement as his own.

If all this sounds familiar, it’s because this discussion directly overlaps with standard arguments raised in Section 230 cases, including the amplification and endorsement of third-party content. For example, Plaintiffs routinely assert that the defendant “endorsed” or “adopted” the third-party statements at issue as a reason to overcome Section 230. Normally, that doesn’t work. Section 230 expressly says that defendants shall not be treated as the “speaker” of third-party content, which should preempt any “endorsement” or “adoption” workarounds. See, e.g., Black v. Google.

Further, several courts have held that Section 230 preempts liability for “retweeting” (which I think would extend to “retruthing” or whatever the analogous verb is on Truth Social). See Banaian v. Bascom and Holmok v. Burke. Trump himself successfully invoked Section 230 in a recent case over tweeting a link to third-party defamatory content, so some members of his legal team know about this potential defense. (And of course Trump is well aware of Section 230, having made its repeal a centerpiece of his unsuccessful 2020 reelection campaign). Thus, from a Section 230 standpoint, it’s a bit jarring to see the court impose liability for retweeting.

(Note: Section 230 applies to state criminal violations, but not to federal criminal prosecutions).

So, what is Section 230’s role in this case? I’m not aware of any case applying Section 230 to a court gag order. This opinion doesn’t broach the subject either. I believe that’s because the defense team didn’t appear to raise 230, which is on them.

If Section 230 were evaluated in the context of a gag order, it’s not entirely clear it would apply. For me, the gag order shares some commonalities with witness protection doctrines and anti-harassment orders like DVROs. The idea is that most types of contact by a restrained individual (in this case, Trump) to these protected individuals necessarily causes some harm or intimidation–whether those contacts are done directly or by third parties spurred to act by the restrained individual. Thus, it’s typically a violation of an anti-harassment order to @-reply to a protected individual (even if it’s a retweet of third-party content) or to issue an online request that third parties contact the protected individual, and Section 230 would not require a different conclusion. At the same time, Section 230 (and the First Amendment) ordinarily permits the amplification of third-party content as a freedom of expression issue.

The dilemma here is that, like a toddler testing a parent’s limits through tendentious wordplay, everyone knows what Trump is doing here. He clearly intended to violate the spirit of the gag order to undermine the judicial system (and extract more contributions from his followers). The question is whether Section 230 and the First Amendment nevertheless tolerate such spiritual violations, and the short answer is that I don’t know.

Case Citation: People v. Trump, SMZ 71762-24 and SMZ 71764-24 (N.Y. Supreme Court April 30, 2024)

Appendix (the gag order)

Defendant is directed to refrain from:

a. Making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding;

b. Making or directing others to make public statements about (1) counsel in the case other than the District Attorney, (2) members of the Court’s staff and the District Attorney’s staff, or (3) the family members of any counsel, staff member, the Court or the District Attorney, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is likely to result; and

c. Making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.