You have the right to remain silent. But the right to blog? That’s more complicated.
Last week, federal prosecutors sought a gag order to keep a southwest Virginia woman from blogging or tweeting about her upcoming trial.
Linda Cheek, a family practice doctor accused of illegally prescribing pain medication, made no bones about her opinion of the case against her.
About to stand trial, Dr. Cheek wrote on herpersonal web site that she’s unable to practice medicine “because of government collusion” and said she and other doctors are being treated like “Columbian [sic] drug lords.”
Dr. Cheek is charged with dispensing controlled substances without proper authority. Her Drug Enforcement Administration registration was revoked in 2008 after she pleaded guilty to submitting false Medicaid and Medicare claims.
The U.S. Attorney’s Office for the Western District of Virginia asked District Judge Glen Conrad to order Dr. Cheek to “cease her internet blogging, tweeting and otherwise public internet communication about her trial,” scheduled to start Feb. 11.
Mr. Conrad, though, refused to silence Dr. Cheek. “It would be wrong for the court to say she forfeits her First Amendment rights when she becomes a defendant,” he said at a hearing on Monday, the Associated Press reported.
So when can a judge knock the laptop off the lap of a blogging defendant? For the answer, Law Blog turned to Ken Paulson, president and chief executive officer of the First Amendment Center at Vanderbilt University.
Judges have ordered gags in cases where an outspoken defendant says enough inflammatory and untrue things about the prosecution to make it difficult for a judge to ensure a fair jury trial, said Mr. Paulson, whose center supports strong speech protections.
He said the Supreme Court hasn’t taken up the matter. But appellate courts have set different thresholds. Four circuits have ruled that a court can’t silence a defendant unless there’s a clear-and-present danger of an unfair trial. Four other circuits have set the gag bar a bit lower, saying there needs to be a “substantial likelihood” of one.
“A judge should show a great deal of deference to a defendant’s First Amendment rights,” said Mr. Paulson. “Otherwise, you have a situation in which the government is accusing a citizen of committing a crime and then prohibiting him from defending himself in the court of public opinion.”
No comments:
Post a Comment