Barrett Brown (Photo from the Free Barrett Brown group)

A district court judge in Dallas, Texas, has issued an order prohibiting journalist and activist Barrett Brown and his defense team from discussing the case with the media.

Brown faces multiple charges including one count of internet threats, one count of conspiracy to make publicly available restricted personal information of an employee of the United States, one count of retaliation against a federal law enforcement officer, one count of traffic in stolen authentication features, one count of access device fraud, ten counts of aiding and abetting identity theft, one count of concealment of evidence and one count of corruptly concealing evidence. Altogether, Brown could be sentenced to up to 105 years in jail if convicted of all the above offenses.

The offenses stem conduct that Brown allegedly engaged in after the private intelligence firm, Stratfor, had its emails hacked.

As the Free Barrett Brown group highlights on its website, at stake is the right to link, because one of the offenses stems from Brown’s decision to share a link to something released online from the Stratfor emails. It also implicates the First Amendment, as Brown is charged with concealing information related to journalistic sources and his own work products. It also raises issues of press freedom and selective prosecution, since it appears that in the three indictments handed down against Brown the government is targeting him for daring to expose the operations of private security and intelligence companies.

District Court Judge Sam Lindsay’s order applies to Brown and all government and defense attorneys and any “employees, representatives or agents of such attorneys” and is intended to “remain in force during the pendency of these actions or until further order of this court.” (Currently, Brown’s trial is scheduled for the spring of next year.)

“No person covered by this order shall make any statement to member of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organizations about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendant, the Government or the administration of justice except that counsel for the Defendant may consult with Mr. Kevin Gallagher regarding the finances needed for Mr. Barrett Brown’s defense,” according to the order.

Lindsay, as a token gesture to acknowledge that Brown does indeed have some First Amendment rights, added, “This order does not prohibit Mr. Brown from making statements or otherwise publishing to the press or media topics not related to the counts on which he stands indicted in these three cases. Mr. Brown is cautioned to consult with counsel prior to making any statements to the media or publishing materials to avoid violating this order.” (For example, he could write book reviews of books by former Nixon administration officials like Chuck Colson but nothing on the status of his case.)

But, according to the court order, “The prohibition on making extrajudicial statements applies to the reposting or republication of any statements made prior to the entry of this order that would now constitute a violation of this order.”

The defense submitted a massive filing before the judge issued a gag order that argued it was “unwarranted because there is no substantial, or even reasonable, likelihood of prejudice to a fair trial based on statements made by the defendant or his counsel since May 1, 2013.” But then the defense decided to agree to the gag order.

The government went through all the press coverage Brown’s case had received and put together a chart. Anything in this chart cannot be republished or disseminated by Brown or anyone involved in the case. Doing so would violate the gag order.

Lindsay issued the order to put a halt to the “pervasive publicity” around the case that would have continued without the gag order. The judge also cited the defendant’s right to a fair trial (in the same way the government had exploited this right) to justify issuing the order.

“There is a substantial likelihood that certain forms of publicity, that is, extrajudicial statements by Counsel and Defendant to members of the press and media, could impair the rights of Defendant, the Government and the public to a fair trial by an impartial jury,” Lindsay declared. “To protect that right to a fair trial, it is necessary for the court to take limited steps to restrain Counsel and Defendant from making prejudicial statements to the press and media.”

The government had pushed for the gag order, accusing Brown and his defense team of demonstrating “a desire to encourage and manipulate media coverage to promote Brown’s beliefs and his causes and to enhance his fundraising.” They argued he had engaged in conduct discouraged by a US magistrate judge and attempted to try the case in the media.

Referencing a Rolling Stone magazine story, the government alleged the media had repeatedly “publicized potentially inadmissible and prejudicial information, such as Brown’s (1) incarceration status, (2) anarchist ideology, (3) three indictments and potential sentences, (4) admissions of conduct and involvement in Anonymous activities, (5) relationship to other Anonymous figures or hackers, (6) troubled childhood and alternative schooling, (7) declaration that he was an atheist, (8) use and abuse of ecstasy, acid, heroin, suboxine and marijuana, (9) lack of steady employment, (10) claimed diagnoses of ADHD and depression, (11) associates descriptions of Brown as a junkie, name fag, moral fag, court jester, (12) self-proclaimed and otherwise assigned titles with Anonymous (spokesperson, senior strategist), (13) receipt of data stolen through hacks conducted by other Anonymous members, (14) use of the stolen data to prank call individuals, publicize personal and confidential information, (15) associates and Brown opining that Brown would end up in jail and (16) property seized by the FBI.”

The negative descriptions could very well be prejudicial to Brown. That is the risk a defendant takes when making statements to the press ahead of trial. Those statements could be used against them.

Does anyone think the government will not use this information or evidence that is out in the public to prosecute and convict Brown now that the judge has issued a gag order? It is not as if the government will be overly decent and fair suddenly.

The gag order was not pursued to protect the interests of the accused. It was pursued to limit the flow of information to the press because the government has known from the beginning that what they were doing looked like vindictive or selective prosecution.

Michael Ratner, who is president emeritus of the Center for Constitutional Rights and also part of the legal team representing WikiLeaks, told Firedoglake, “I do not think there was any need for a gag order. The government presented no evidence that the attorneys or Barrett Brown made any statement that would in any way prejudice a fair trial. Brown’s respected attorneys are bound by ethical rules and hardly need to be reminded of them.”

“In general, gag orders on defense counsel make a fair trial more difficult in that the press and public are denied the opinions of counsel,” Ratner added. “I hate seeing such an order in this case where there is already so much bad pre-trial publicity against Brown by mainstream media. Now defense counsel are prohibited from equalizing that equation.”

Gagging Brown and his defense team has the effect of preventing those participating in the trial from speaking to the press about the trial until after the trial has concluded. Once the trial is over, the press may have little interest in what Brown or his lawyers have to say. This means the public is deprived of the opportunity to challenge the government’s handling of the trial when it most matters, especially if the handling is abusive and in violation of Brown’s rights.

Restraining speech during the trial enables the government and the judge to cover up errors or improprieties. That may do as much damage, if not more damage, than any “extrajudicial statements” made in the pretrial phase.

Michael E. Swartz wrote in the Columbia Law Review in 1990, “As a practical and legal matter, prejudicial publicity does not usually pose a serious threat to the fair trial right and thus rarely triggers sixth amendment concerns. Even when publicity does rise to a dangerous level, several cures may be implemented apart from a gag order. Extensive voir dire examination of jurors to ensure that they have not been exposed to prejudicial information, change of venue to an area less infected with bias, judicial instructions not to read or watch press reports, and sequestration of the jury during the trial’s duration are all methods which help ensure that the jury remains neutral.”

Swartz added, “When balancing speech and trial rights it is important to keep in mind the following: the Constitution tolerates a large number of external influences upon the jury, cases demonstrate that the Court is most often satisfied that publicity has not destroyed the integrity of verdicts, and traditional methods of ensuring a fair trial have typically proven adequate.”

What cures did the judge put in place prior to granting the gag order? It appears the judge took the easy route and decided to impose restrictions on free speech under the guise of protecting Brown’s right to a fair trial (which can be typical in criminal cases).

The gag order on Brown and his defense team is a prior restraint on speech that impedes the ability of members of press to do their jobs and report on what is happening with the case. However, for the government, it restores a level of secrecy to the process that the government can rely upon to punish Brown for his alleged conduct to the maximum extent possible without having to suffer from the background noise of supporters referencing details shared by the defense to condemn the government’s legal maneuverings.