No Force Nor Will: Judicial Authority in a Post-Truth Era

I. Introduction

When I began writing this paper, I wanted to answer a straightforward question: Can courts constitutionally restrict a criminal defendant from making public statements attacking the legitimacy of the presiding judge? The question seemed simple enough. I would determine the appropriate level of scrutiny, identify the government’s interest, and assess whether the restriction was narrowly tailored to serve that interest. And after all, courts have limited speech before, restricting press coverage of trials and the ability of defendants to talk about witnesses. But in trying to answer that question, I’ve unearthed some deep and troubling problems with how our society and judiciary work.

The original question has taken on new urgency as courts across multiple jurisdictions have imposed gag orders on former President Donald J. Trump, prohibiting him from making certain statements about court staff, potential witnesses, and others involved in his criminal proceedings. As it currently stands, Trump has three gag orders against him: one from Justice Engoron in the New York civil fraud case, prohibiting statements about court staff; one from Justice Merchan in the New York criminal case, restricting statements about court staff, prosecutors’ staff, and their families; and one from the D.C. Circuit Court of Appeals, limiting statements about Special Counsel staff and their families. Yet even these expansive orders have stopped short of restricting Trump’s ability to criticize the judges themselves.

This paper has three parts. First, I examine the foundational Supreme Court cases establishing when and how courts may restrict speech in criminal proceedings. Starting with Sheppard v. Maxwell, the Court recognized that judges must take “strong measures” to protect proceedings from outside interference while carefully balancing First Amendment rights. This examination provides the basic framework for analyzing potential restrictions on a defendant’s speech.

Next, I analyze the recent gag orders issued against former President Trump, representing the most significant test of these speech restriction principles in the modern era. These orders, issued by two state courts in New York and a federal court in Washington D.C., have carefully delineated what a defendant with massive public influence can and cannot say about court staff, witnesses, and other trial participants. Understanding these orders—their scope, justifications, and limitations—is crucial to addressing whether courts could constitutionally restrict criticism of judges themselves.

The final section forms the core of this paper’s analysis, examining whether a court could constitutionally prohibit a defendant from making public statements attacking the legitimacy of the presiding judge. Through the traditional First Amendment framework, I determine that such restrictions would require strict scrutiny and explore two competing compelling interests: preserving the judiciary’s essential legitimacy in the eyes of the public versus protecting the public’s ability to expose actual judicial misconduct. This analysis reveals a troubling paradox that extends far beyond simple constitutional questions—attempts to protect judicial legitimacy through speech restrictions may actually undermine it further, forcing us to confront how courts can maintain their authority in a “post-truth” era where traditional sources of legitimacy have lost their power. The question becomes not just whether courts can restrict speech, but whether courts built on Enlightenment principles of rational discourse and shared truth can function at all when these fundamental assumptions no longer hold true.

II. The Constitutional Framework for Restricting Speech in Criminal Proceedings

But to start, we need to establish the constitutional framework. The First Amendment states, “Congress shall make no law . . . abridging the freedom of speech, or of the press,” and it is because of this strong language that courts face significant constraints in their ability to restrict press coverage of criminal proceedings.[1] Prior restraints on publication carry a “heavy presumption against their constitutional validity,” because “the press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”[2] Nevertheless, courts have long recognized that this right is not absolute, particularly in the context of criminal proceedings where the defendant’s Sixth Amendment right to a fair trial must also be protected.

Sheppard v. Maxwell is the foundational and most important case in this area of law.[3] There, the defendant was convicted of murdering his wife in a trial that attracted massive media attention. With twenty reporters crowding inside the bar and others packing the judge’s anteroom during conferences, the press overhwlmed the courthouse making private consultation between Sheppard and his counsel almost impossible. The Supreme Court reversed his conviction, holding that “the massive, pervasive, and prejudicial publicity” prevented Sheppard from receiving a fair trial consistent with due process.[4]

More importantly for our purposes, the Court emphasized that trial judges must take “strong measures” to protect proceedings from outside interferences. While the Court focused primarily on managing press conduct within the courthouse rather than imposing direct restrictions on speech, Sheppard has since become the foundation for a much broader judicial power to limit the speech of trial participants. Courts regularly cite Sheppard’s mandate to take “strong measures” as justification for restricting what attorneys, witnesses, defendants, and others may say about ongoing proceedings.[5]

This expansive reading of Sheppard has allowed courts to develop a flexible approach to speech restrictions, tailoring limits based on the speaker’s role in the proceedings and their speech’s specific threat to judicial administration. In Nebraska Press Association v. Stuart, the Court established that while restrictions on press coverage face the highest constitutional scrutiny, courts retain authority to manage courthouse proceedings to prevent a “carnival atmosphere.”[6] The Court has also recognized that attorneys, as officers of the court with special access to information, may face greater restrictions than ordinary citizens, allowing states to limit attorney speech that poses a “substantial likelihood of material prejudice” to ongoing proceedings.[7] In judicial proceedings involving elected officials, Wood v. Georgia emphasized that the courts retain broad First Amendment rights to comment on matters of public concern, absent concrete evidence of actual interference with justice.[8] For court personnel and judges themselves, the Court has recognized in cases like United States v. Aguilar that they may face special duties of confidentiality regarding sensitive judicial matters.[9] And for trial witnesses, the Court in Butterworth v. Smith struck down permanent bans on witnesses discussing their own testimony after proceedings end, recognizing the public’s interest in exposing potential judicial misconduct.[10] The key principle that has emerged is that speech may be limited, when necessary, to protect the integrity of judicial proceedings, with the scope of permissible restrictions varying based on their necessity to ensure fair administration of justice. In the case of Trump, the D.C. circuit explained that he, “like any other criminal defendant, . . . has a constitutional right to speak” and his “millions of supporters, as well as his millions of detractors, have a right to hear what he has to say.”[11]

i. President Trump’s Cases.

In late 2023 and early 2024, courts in New York state and federal jurisdictions imposed a series of gag orders restricting Donald Trump’s speech about his ongoing legal cases. These orders emerged from Trump’s pattern of making public statements about court staff, potential witnesses, and others involved in the proceedings. As of the time of this writing, there are gag orders restricting Trump in three cases: the criminal case in federal court; the criminal case in New York state court; and the civil case in New York state court. In the federal criminal case, United States v. Trump, Judge Chutkan in the D.C. district court imposed the first such gag order, which was then appealed to and modified by the D.C. Circuit Court of Appeals.[12] In the New York civil case, Justice Engoron issued multiple gag orders in response to Trump’s statements about court staff, ultimately expanding those orders to protect family members of court personnel.[13] And in the New York criminal case, Justice Merchan imposed additional restrictions on Trump’s speech, citing the “very real” threat to the “integrity of the judicial proceedings” posed by Trump’s statements about trial participants and their families.[14]

ii. Justice Engoron’s Civil Case Gag Order.

In the New York civil fraud case against Trump, Justice Arthur Engoron issued a series of increasingly restrictive gag orders in response to Trump’s public statements about court staff. The initial gag order came on October 3, 2023, when Justice Engoron orally ordered that “all parties [are prohibited] from posting, emailing, or speaking publicly about any members of my staff.”[15] This order followed Trump’s social media post containing “an untrue, disparaging, and personally identifying post about my Principal Law Clerk” during a break in the trial.[16] Justice Engoron found that Trump’s post resulted in “hundreds of threatening and harassing voicemail messages” to his chambers.[17]

Trump violated this initial order by failing to remove the offending post from his campaign website for 17 days.Justice Engoron responded by imposing a $5,000 fine against Trump on October 20, 2023.[18] Then, just days later, on October 25, Trump again violated the order by telling reporters outside the courtroom that “this judge is a very partisan judge with a person who’s very partisan sitting alongside him, perhaps even more partisan than he is.”[19] Though Trump’s attorneys argued he was referring to a witness and not Justice Engoron’s law clerk, Justice Engoron found this explanation “rings hollow and untrue” and imposed an additional $10,000 fine.[20] Finally, on November 3, 2023, Justice Engoron expanded the gag order to prohibit counsel from “making any public statements, in or out of court, that refer to any confidential communications, in any form between my staff and me.”[21]

The Supreme Court of the State of New York, Appellate Division, First Judicial Department (the First Department) unanimously upheld Justice Engoron’s gag orders in December 2023, finding that “the gravity of potential harm is small, given that the Gag Order is narrow, limited to prohibiting solely statements regarding the court’s staff.”[22] The court noted that a D.C. Circuit opinion had recently upheld “a broader gag order than the one at issue here.”[23]

Justice Engoron grounded his authority to issue the gag orders in courts’ “broad discretion to control the conduct of litigants and attorneys in ongoing proceedings,” citing Sheppard v. Maxwell. [24] He found the orders were justified because “the threat of, and actual, violence resulting from heated political rhetoric is well-documented” and his “chambers have been inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages.”[25] In their motion to support the gag order, the People relied on Fischetti v. Scherer, 44 A.D.3d 89, 93 (1st Dep’t 2007) for the principle that “reasonable limitations may be placed on speech where an important countervailing interest is being served”—here, protecting court staff from a “deluge of the court’s chambers phone and the law clerk’s personal cell phone, personal emails and social media accounts with hundreds of threatening, harassing, disparaging and antisemitic messages.”[26]

iii. Justice Merchan’s Criminal Case Gag Order.

In March 2024, Justice Merchan issued a gag order in Trump’s criminal case that directed the defendant to “refrain from . . . 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.”[27]

The order arose after Trump made several extrajudicial statements attacking court staff and potential witnesses. Following the trial verdict, Trump moved to terminate the gag order, arguing that “the conclusion of trial constitutes a change in circumstances warranting termination.”[28] Justice Merchan partially granted this motion by lifting restrictions on statements about trial witnesses and jurors but maintained the provisions protecting court and District Attorney staff through sentencing.

Like Justice Engoron, Justice Merchan cited Sheppard v. Maxwell as establishing his authority to issue and maintain the gag order in the courts’ “fundamental responsibility to protect the integrity of the criminal process and to control disruptive influences in the courtroom.”[29] The Judge found the restrictions were justified because “all citizens, called upon to participate in these proceedings, whether as a juror, a witness, or in some other capacity, must now concern themselves not only with their own personal safety, but with the safety and the potential for personal attacks upon their loved ones.”[30] The First Department unanimously affirmed that Justice Merchan had “properly weighed petitioner’s First Amendment Rights against the court’s historical commitment to ensuring the fair administration of justice in criminal cases, and the right of persons related or tangentially related to the criminal proceedings from being free from threats, intimidation, harassment, and harm.”[31] In upholding the gag order, the court found that even after the verdict, “threats received by District Attorney staff continued to pose a significant and imminent threat.”[32] The New York Court of Appeals dismissed Trump’s appeal “upon the ground that no substantial constitutional question is directly involved.”[33]

iv. D.C. Circuit’s Gag Order.

In U.S. v. Trump, the D.C. Circuit modified the district court’s gag order and prohibited Trump and other parties from making statements about “(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member” if 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 highly likely to result.”[34] The court explicitly allowed Trump to continue criticizing the government, asserting his innocence, claiming political motivation, and criticizing his political rivals’ platforms and policies.[35]

The D.C. Circuit’s order arose after Trump made numerous inflammatory public statements about potential witnesses, court staff, and prosecutors following his indictment. For example, Trump posted “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” on social media the day after his initial court appearance.[36] The day after this post, one of his supporters called the district court judge’s chambers with explicit threats of violence.[37] Trump also attacked potential witnesses, including accusing former Vice President Pence of going to the “Dark Side” and suggesting that former Chief of Staff Mark Meadows might “make up some really horrible ‘STUFF’” about Trump in exchange for immunity.[38] Trump’s statements repeatedly triggered waves of threats and harassment against their targets from his supporters.[39]

The D.C. Circuit Court grounded their authority to issue the gag order in all courts’ constitutional duty to ensure fair trials and protect the judicial process. The court held that “speech about counsel and staff working on the case poses a significant and imminent risk of impeding the adjudication of this case” when it triggers “extraordinary safety precautions” that “will necessarily hinder the trial process and slow the administration of justice.”[40] While acknowledging Trump’s First Amendment rights as both a criminal defendant and political candidate, the court found that these rights could be limited when necessary to protect the compelling governmental interest in fair trial administration.[41] The court required that any restrictions be narrowly tailored and supported by evidence that less restrictive alternatives would not suffice.[42] Under this framework, the court found that Trump’s documented pattern of inflammatory statements posed a “significant and imminent threat to the functioning of the criminal trial process” that justified carefully targeted speech restrictions.[43]

III. The Unanswered Question

But what has not been answered yet is whether a court can constitutionally prohibit a criminal defendant from making public statements attacking the legitimacy of the presiding judge.[44] This gap in First Amendment jurisprudence has taken on new urgency in an era where defendants can instantly reach millions of followers with claims that their judge is corrupt and the justice system is illegitimate.

The following hypothetical will serve as our facts, and in order to really test whether we could permit this sort of restriction, we will assume the worst case scenario. A criminal defendant with tens of millions of social media followers repeatedly declares that their presiding judge is corrupt, biased, and acting as part of a broader conspiracy to undermine justice—and who calls on their followers to reject both the judge’s authority and the legitimacy of the entire judicial system itself. In response to this, the presiding judge issues a gag order preventing the defendant from speaking publicly about the judge at all.[45]

The remainder of this paper will address three key questions that arise from restricting a defendant’s speech about a presiding judge. First, I will examine what level of constitutional scrutiny should apply to such restrictions, analyzing both the content-based nature of these limitations and the special character of political speech about judicial officials. Next, I will explore the application of strict scrutiny to these restrictions, focusing on identifying and weighing the competing governmental interests at stake—both in preserving judicial legitimacy and in protecting the public’s ability to expose actual judicial misconduct. Finally, I will confront the troubling implications this analysis reveals about our judicial system’s fundamental assumptions, examining how courts might maintain their authority in an era where traditional notions of institutional legitimacy and shared truth no longer hold. This progression will take us from a seemingly straightforward First Amendment question to a much deeper examination of how our judicial system can function in what some have called our “Post-Truth” world.

a. What is the Applicable Standard?

The obvious (and easiest) way to determine the level of scrutiny to apply to this type of restriction would be to simply look at the level of scrutiny the D.C. Circuit Court used in Trump v. United States. In that case, they held that the restriction on Trump’s speech must endure “the most demanding scrutiny . . . and that only a significant and imminent threat to the administration of criminal justice will support restricting Mr. Trump’s speech.”[46] But I hesitate to simply apply the D.C. circuit’s test because the court there did not officially decide which level of scrutiny should apply. Instead, they “assume[d] without deciding that the most demanding scrutiny applie[d].”[47] Therefore, while I will allow the D.C. Circuit’s opinion to guide the discussion, I will not hold it as binding.

Determining which standard of constitutional review should be applied to a speech restriction is a multi-step inquiry that involves analyzing both the type of restriction and the character of the speech being limited.

First, courts must examine whether the restriction is content-based or content-neutral, as content-based restrictions are presumptively unconstitutional and subject to strict scrutiny.[48] A restriction is content-based if it requires examining the content of speech to determine whether the speech is prohibited. But in addition to content-based considerations, we must examine if a viewpoint is being discriminated against, which occurs when restrictions target speech based on “the specific motivating ideology or the opinion or perspective of the speaker.”[49] Viewpoint discrimination is an especially “egregious form of content discrimination” and is virtually never permissible under the First Amendment.[50] The Supreme Court has emphasized that if there is a “bedrock principle” underlying the First Amendment, it is that the government may not prohibit expression simply because it disagrees with the speaker’s view.[51] In our hypothetical scenario, the restriction on the defendant’s speech is content-based, but it is viewpoint neutral, because it prohibits all speech about the judge, regardless of whether that speech is positive, negative, or neutral. The gag order does not selectively target only criticism or negative perspectives about the judge while allowing praise or support; rather, it bars any public statements about the judge whatsoever.

Next, courts consider what topic of speech is being restricted, because some topics deserve more protections and some deserve less. For example, commercial speech related to illegal activity receives reduced protection,[52] while political speech about government institutions and officials receives the highest level of First Amendment protection.[53] Here, criticism of a federal judge involves core political speech about both a government official and the administration of justice—topics that lie at the heart of First Amendment protection. Indeed, in Craig v. Harney, the Supreme Court emphatically declared that “the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion.”[54] Nevertheless, the Court acknowledged that, “[c]onceivably, a campaign could be so managed and so aimed at the sensibilities of a particular judge and the matter pending before him as to cross the forbidden line.”[55] This caveat takes on special significance in our hypothetical, where a defendant with massive social media reach systematically attacks not just the judge’s ruling but the very legitimacy of the judicial process itself—potentially presenting the exact type of campaign the Craig Court envisioned as crossing that “forbidden line.” For the purposes of our hypothetical, suffice it to say that our defendant’s speech about the judge or the judicial process would be political speech.

So to recap, the restriction against our defendant’s speech is content-based and concerns their political speech. Based on these facts alone, I believe we can comfortably conclude that strict scrutiny must apply to any restriction on our hypothetical defendant’s speech about the judge. Content-based restrictions on political speech have long required the most exacting level of constitutional review, and here we have both elements present—the restriction is undeniably content-based since the subject matter of the speech determines if it violates the order, and criticism of a judge presiding over a criminal trial represents core political speech about the functioning of our justice system. The D.C. Circuit’s analysis in Trump supports this conclusion, as that court also applied “the most demanding scrutiny” to restrictions on Trump’s speech about trial participants, requiring the government to show a “significant and imminent threat to the administration of criminal justice.”[56] While the D.C. Circuit did not definitively resolve which level of scrutiny should apply, its willingness to subject the order to the highest level of review, even for restrictions on speech about staff and attorneys, strongly suggests that strict scrutiny would be required for any limitation on a defendant’s ability to criticize the presiding judge—an even more central figure in ensuring the fair administration of justice whose decisions and potential biases are matters of clear public concern. Therefore, we will apply strict scrutiny.[57]

b. Applying Strict Scrutiny.

Under strict scrutiny, the most exacting standard of constitutional review, there is a “presumption of unconstitutionality” that shifts the burden to the government to justify its speech restriction. To survive strict scrutiny, the government must prove two elements: first, that its restriction serves a “compelling government interest,” and second, that the restriction is “narrowly tailored” to further that interest using the “least restrictive means.” The requirement of narrow tailoring demands that the restriction not be “substantially broader than necessary to achieve the government’s interest.”[58]

What is the possible governmental interest here? The judge has forbidden the defendant from making public statements claiming that the judge and the judiciary as a whole are corrupt and illegitimate. At first glance, this might seem like nothing more than protecting judges from criticism—which the Supreme Court has explicitly rejected as a valid basis for speech restrictions.[59] Moreover, criticism of government officials, even harsh criticism, lies at the very heart of First Amendment protection.

But the interest at stake here runs deeper than merely shielding judges from criticism. The judiciary’s power rests entirely on public acceptance of its authority. As Alexander Hamilton explained in Federalist 78, the courts have “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.”[60] Unlike the executive branch, courts cannot enforce their own orders—they rely on the citizens doing the things courts tell them to do simply because a judge has told them to do it. And this requires public acceptance of their legitimacy. Without the acceptance of a court’s “moral sanction,”[61] the judiciary has no power. So when a defendant with a massive public platform systematically attacks that legitimacy, calling for wholesale rejection of judicial authority, that defendant threatens the very foundation that allows courts to function at all.

This presents a unique—and grave—governmental interest: preserving the judiciary’s ability to operate as a legitimate branch of government, and not just a desire to protect individual judges’ feelings or reputations. Instead, it goes to the heart of whether courts can continue to serve their constitutional role as neutral arbiters of justice if their authority is systematically undermined. Courts cannot fulfill their essential function of fairly adjudicating disputes and administering justice without such integrity—and public faith in that integrity.

Is this a “compelling” governmental interest? I would think so. My first year constitutional law professor explained that a “compelling” government interest is something that, “if it isn’t an interest of the government, then what is the point of even having a government?” The interest must be “of the highest order,” addressing “paramount” concerns fundamental to the government’s ability to function and fulfill its core duties.[62] And the preservation of judicial legitimacy appears to satisfy this standard readily. As the Supreme Court stated in Williams-Yulee v. Florida Bar, “public perception of judicial integrity is ‘a state interest of the highest order.’”[63] This interest goes beyond mere efficient administration—it strikes at the heart of whether courts can fulfill their constitutional role at all. Without public acceptance of courts’ basic legitimacy—what Justice Frankfurter called their “moral sanction”—the judicial branch would be unable to resolve disputes or protect individual rights. This represents precisely the kind of paramount governmental interest that the compelling interest standard was designed to protect.

But what if there is a different compelling governmental interest to be considered here? What if the interest isn’t in protecting the legitimacy of the judiciary, but rather in protecting the ability of citizens to criticize and expose genuine governmental corruption? Imagine if, in our hypothetical scenario, the presiding judge actually was acting corruptly and illegitimately. In such a scenario, allowing a defendant to criticize the judge would help the judiciary’s legitimacy.

The D.C. Circuit recognized this in their Trump decision. There, they said that “[a]llowing robust speech can ‘guard[] against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.’”[64] The judiciary, despite its unique need for public confidence to function, cannot be exempt from this fundamental need for public oversight and criticism. History offers numerous examples where judges have indeed acted corruptly or abused their authority, from the infamous Black Codes cases that upheld racial segregation to more recent instances of judges accepting bribes or showing demonstrable bias.[65] In such cases, public exposure and criticism of judicial misconduct serves not to undermine legitimate judicial authority, but to preserve it by rooting out corruption that would otherwise taint the entire system.

This presents us with competing compelling interests that are in direct tension: preserving judicial legitimacy necessary for courts to function versus maintaining robust public oversight to expose actual judicial misconduct. The challenge becomes particularly acute in our hypothetical scenario, where a criminal defendant claims judicial corruption. On one hand, allowing unfounded attacks on judicial legitimacy from a defendant with massive public influence could cripple the courts’ ability to function. On the other hand, preventing a defendant from exposing genuine judicial misconduct could shield corruption and deny the public crucial information about the administration of justice.

How should we resolve this tension? I believe the answer lies in examining the actual results of issuing such a gag order. If a judge were to prohibit a defendant from making any public statements about them, the practical effect would actually undermine judicial legitimacy even further, because it would be seen as precisely the kind of self-serving censorship that fuels accusations of corruption and bias in the first place. The Supreme Court has even recognized this paradox in Bridges v. California:

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.[66]

This issue becomes especially problematic in our hypothetical case, where a defendant with a large public following is restricted from criticizing the judge. The defendant’s supporters would likely view the speech restriction itself as confirmation of their worst suspicions about judicial bias and corruption. And issuing such an order may even convince some people on the fence that, yes, the judiciary is indeed corrupt. Thus, attempting to use a gag order for that purpose could backfire dramatically, transforming what might have eventually been dismissed as unfounded attacks on judicial legitimacy into a self-fulfilling prophecy where the very act of restricting speech feeds the narrative of judicial overreach and bias.

This leaves us between a rock and a hard place. In our hypothetical, we must either allow someone with cult-like influence to instruct large swathes of the country to disregard the judiciary, or fan the flame by preventing that person from doing so. One potential solution to this may lie in strengthening the transparency of the judiciary. Courts could focus on making their processes and decisions more accessible to the public through clear explanations of judicial reasoning in plain language, enhanced public access to court proceedings, and proactive disclosure of potential conflicts of interest. By demonstrating their commitment to openness and accountability, maybe courts could build a foundation of public trust that becomes more resistant to attacks on their legitimacy.

But then again, we live in a post-truth society.[67] We could give all the transparency in the world, but if Trump says something isn’t true, it just isn’t to his followers. They wholesale reject anything that doesn’t comport with their worldview. And when someone with that kind of influence creates an alternative reality for their loyalists, traditional approaches to building institutional trust actually becomes counterproductive. The very act of providing evidence of legitimacy is viewed with suspicion, as followers question why the courts are “trying so hard” to prove their legitimacy. Complex legal explanations are dismissed in favor of simpler conspiracy narratives that confirm existing biases. And even more troubling, there might be an “authority inversion”—the more authoritative and credible the source, the less trustworthy it appears to those who have already rejected institutional legitimacy. Expertise itself becomes evidence of corruption, as experts are obviously part of the “deep state.” In this inverted world, trust flows not from institutional credibility but from personal loyalty to individual figures who position themselves as outsiders fighting against a corrupt system. In essence, our problem is not just about Trump criticizing judges; our problem is that the Enlightenment premise of shared facts and rational discourse leading to common understanding is dead.[68]

So what the hell do we do now? Courts derive their authority from public confidence in their legitimacy; but it seems that any of our attempts to bolster that legitimacy actually undermines it. I think we have to realize that, in our post-truth world, traditional notions of institutional legitimacy are no longer possible. And if that’s the case, the question therefore becomes: how can we ensure courts maintain their authority even when there is no public confidence?

The most direct approach would be to hand the judiciary a sword. Give the judiciary the power to control its own enforcement mechanism by moving the U.S. Marshals Service entirely under the judicial branch. As it currently stands, the U.S. Marshals operate under the Department of Justice, making it part of the executive branch. While the Marshals do protect federal judges and enforce court orders, they ultimately answer to the Attorney General, not to the judiciary. This arrangement means that courts must rely on the executive branch’s cooperation to enforce their decisions—precisely the structural weakness that would cause a failure of the judiciary if a hostile president were in power.

But almost immediately, we run into a problem with this plan. The Constitution says that it is the president who “shall take care that the laws be faithfully executed.”[69] And the Supreme Court reiterated this in Morrison v. Olson, where they said that “investigation and prosecution of crimes is a quintessentially executive function.”[70] Moving the U.S. Marshals Service completely under judicial control would thus likely be unconstitutional, as it would strip the President of a key mechanism for fulfilling his constitutional enforcement obligations. But regardless, placing law enforcement power directly in the hands of judges creates dangerous opportunities for abuse. Judges could potentially use their control over the Marshals to enforce personal vendettas or apply the law selectively, without the political accountability that helps check such abuses in the executive branch. The separation of enforcement power from judicial power exists for good reason—combining them in the same hands risks exactly the kind of tyranny the Founders sought to prevent.

Therefore, giving courts direct control over enforcement would likely create more problems than it solves. It would be unconstitutional, potentially tyrannical, and fundamentally at odds with our system of separated powers. Yet we remain stuck with our core problem—courts need some way to maintain their authority in a world where public confidence no longer guarantees legitimacy. Perhaps the solution isn’t to find new ways to enforce judicial power, but to radically rethink how that power operates in the first place.

c. Returning to Our Core Question.

Our analysis began with a straightforward constitutional question: can courts restrict a criminal defendant from making public statements attacking the legitimacy of the presiding judge? But as we’ve discovered, this inquiry opens up far more fundamental questions about judicial authority in an era where traditional assumptions about institutional legitimacy no longer hold.

The traditional First Amendment analysis suggests that such speech restrictions would face nearly insurmountable hurdles under strict scrutiny. While preserving judicial legitimacy is undoubtedly a compelling government interest, attempting to achieve this through speech restrictions appears both ineffective and counterproductive. The very act of silencing criticism tends to validate accusations of judicial overreach and bias, potentially doing more damage to court legitimacy than the original statements. So answering the strict scrutiny question is easy: a restriction on a defendant’s ability to speak about the presiding judge would almost certainly be unconstitutional.

But our examination revealed that the constitutional question is merely a surface-level blister on a deeper institutional crisis. The real challenge isn’t about balancing First Amendment rights against judicial authority—it’s about figuring out how courts can function when the ideas underlying their power no longer hold true. Our legal system was built on Enlightenment-era assumptions about rationality, shared truth, and institutional legitimacy. The Founders envisioned courts deriving their power from reasoned argument and public acceptance, constructing a judiciary that would persuade through the strength of its logic rather than the force of arms. But what happens when people reject reason itself as a basis for authority?

I don’t know the answer. And quite honestly, I’m frightened.

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Footnotes

[1] U.S. Const. amend. I.

[2] New York Times Co. v. United States, 403 U.S. 713, 714 (1971); Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).

[3] Sheppard v. Maxwell, 384 U.S. 333, 344 (1966).

[4] Sheppard v. Maxwell, 384 U.S. 333, 344 (1966).

[5] See, e.g., United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000) (citing Sheppard for the proposition that “trial courts may restrict the speech of trial participants in order to ensure a fair trial”); United States v. Carmichael, 326 F. Supp. 2d 1267, 1293 (M.D. Ala. 2004) (relying on Sheppard to restrict defendant’s website that posted information about government witnesses); In re Morrissey, 168 F.3d 134, 140 (4th Cir. 1999) (upholding attorney gag order based on Sheppard’s recognition of courts’ authority to protect fair trial rights); United States v. Tijerina, 412 F.2d 661, 666-67 (10th Cir. 1969) (extending Sheppard’s principles to justify direct restrictions on trial participants’ speech). These cases demonstrate how Sheppard’s core mandate—that courts must protect the integrity of their proceedings—has evolved from its original context of managing courthouse decorum into a broader authority to restrict various forms of speech that might interfere with fair trial administration.

[6] Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 551 (1976).

[7] Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991).

[8] Wood v. Georgia, 370 U.S. 375, 395 (1962).

[9] United States v. Aguilar, 515 U.S. 593, 606 (1995).

[10] Butterworth v. Smith, 494 U.S. 624, 635-36 (1990).

[11] United States v. Trump, 88 F.4th 990, 1021 (2023).

[12] Trump, 88 F.4th at 996.

[13] People v. Trump, 2022 N.Y. Slip Op 33771(U) (N.Y. Sup. Ct. Nov. 3, 2022).

[14] People v. Trump, 2024 N.Y. Slip Op 31375(U) (N.Y. Sup. Ct. Apr. 1, 2024).

[15] People v. Trump, 2022 N.Y. Slip Op 33771(U) (N.Y. Sup. Ct. Nov. 3, 2022).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Matter of Trump v. Engoron, NYSCEF Doc. No. 27, 3 (N.Y. App. Div. 1st Dept. Dec. 14, 2023).

[23] Id.

[24] Matter of Trump v. Engoron, NYSCEF Doc. No. 9 ¶ 6 (N.Y. App. Div. 1st Dept. Nov. 22, 2023) (citing Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)).

[25] Id.

[26] Id.

[27] People v. Trump, 2024 N.Y. Slip Op 31375(U) (N.Y. Sup. Ct. Apr. 1, 2024).

[28] Matter of Trump v. Merchan, 230 A.D.3d 413 (N.Y. App. Div. 1st Dept. 2024).

[29] People v. Trump, 2024 N.Y. Slip Op 31375(U) (N.Y. Sup. Ct. Apr. 1, 2024).

[30] Id.

[31] Matter of Trump v. Merchan, 230 A.D.3d 413 (N.Y. App. Div. 1st Dept. 2024).

[32] Id.

[33] Matter of Trump v. Merchan, 41 N.Y.3d 1013 (N.Y. June 18, 2024).

[34] United States v. Trump, 88 F.4th 990, 996 (D.C. Cir. 2023).

[35] Id. at 1028.

[36] Id. at 997. See also Joseph Ax, Trump’s Threatening Post Flagged by U.S. Prosecutors to Judge, Reuters (Aug. 7, 2023), https://www.reuters.com/legal/trumps-threatening-post-flagged-by-us-prosecutors-judge-2023-08-05/

[37] Id. at 998.

[38] Id. at 999.

[39] Id. at 1011–12.

[40] Id. at 1013–14.

[41] Id. at 1016–17.

[42] Id. at 1017.

[43] Id. at 1021.

[44] None of the previous cases involved such a restriction. The D.C. Circuit court noted that “the district court commendably did not include in the [gag order] speech directed at the judge herself or the court as an institution.” Trump, 88 F.4th at 1025.

[45] Originally, the hypothetical I had planned was that the Judge prevented the defendant from speaking negatively about the Judge. But this would be viewpoint discrimination, and would immediately be declared unconstitutional no matter the countervailing interests, so I changed it to any speech about the Judge at all so we may explore the policy interests.

[46] United States v. Trump, 88 F.4th 990, 1008 (2023).

[47] Id.

[48] Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

[49] Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

[50] Id.

[51] Texas v. Johnson, 491 U.S. 397, 414 (1989).

[52] Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rel., 413 U.S. 376, 388 (1973).

[53] Mills v. Alabama, 384 U.S. 214, 218–19 (1966).

[54] Craig v. Harney, 331 U.S. 367, 376 (1947).

[55] Id.

[56] United States v. Trump, 88 F.4th 990, 997 (D.C. Cir. 2023).

[57] One path forward would be to simply apply the D.C. Circuit’s three-part test from United States v. Trump for analyzing restrictions on criminal defendants’ speech. Under that framework, courts must examine: “(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.” 88 F.4th 990, 996 (D.C. Cir. 2023). However, this test is too narrow for our purposes because it focuses exclusively on protecting “the fair and orderly adjudication of [that] ongoing criminal proceeding.” Id. The test provides a framework for analyzing concrete threats to an individual trial’s administration—things like witness intimidation or staff harassment that might impede that specific proceeding. But it offers no guidance for evaluating broader threats to judicial legitimacy itself. When a defendant claims the entire judiciary is corrupt, the harm transcends any single proceeding. Such claims threaten to undermine the public’s faith in courts as legitimate arbiters of justice, a harm that cannot be captured by a test focused solely on protecting individual trial proceedings. Therefore, while the D.C. Circuit’s test might be useful for analyzing specific trial-related speech restrictions, it cannot adequately address the fundamental tension between protecting legitimate criticism of corruption and preserving the judiciary’s institutional legitimacy, which is the purpose of this paper.

[58] Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989).

[59] As the Court emphasized in Craig v. Harney, “the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion.” 331 U.S. 367, 376 (1947).

[60] The Federalist No. 78 (Alexander Hamilton).

[61] Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting).

[62] Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979).

[63] Williams-Yulee v. Fla. Bar, 575 U.S. 433, 446 (2015).

[64] United States v. Trump, 88 F.4th 990, 1025 (citing Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).

[65] See generally Evan Bell, Judicial Misconduct, 35 Commonwealth L. Bull. 619 (2009).

[66] Bridges v. California, 314 U.S. 252, 270–71 (1941).

[67] See Lee McIntyre, The Hidden Dangers of Fake News in Post-Truth Politics, 297 Revue internationale de philosophie 113, 115 (2021); Hannah Arrendt, The Origins of Totalitarianism 382 (1951). Arrendt writes, “In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true . . . The totalitarian mass leaders based their propaganda on the correct psychological assumption that, under [some] conditions, one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism.”

[68] See generally Immanuel Kant, An Answer to the Question: What is Enlightenment? (Ted Humphrey trans., Hackett Publishing 1992) (1784).

[69] U.S. Const. art. II, § 3.

[70] Morrison v. Olson, 487 U.S. 654, 706 (1988).