Very interesting.

Andrew Burkhart:

Erika Kirk recently sat down for an interview with Jesse Watters of Fox News. The interview aired on Wednesday, and I have to wonder if the timing of the State’s motion to clarify or modify the gag order issued in the case is a coincidence or not.

In my earlier review of the gag order, we talked about some of the legal problems with it – particularly, the ambiguity about who exactly it applies to. While seemingly directed at the lawyers and couched in the language of the ethical rules that apply to lawyers, it nevertheless seems to impose some kind of responsibility on the lawyers to control the speech of the witnesses.

Because gag orders are limitations on a person’s right to free speech protected by the First Amendment, they are generally invalid if they are unclear, overbroad, or not necessary. This is because unclear restrictions are likely to chill constitutionally protected speech that is allowed, as the risk of erring on the wrong side of caution incentivizes speakers to self-censor. Overbroad restrictions chill constitutionally protected speech by silencing more people than the circumstances that necessitate the gag require. And because gag orders are highly disfavored in the law, there has to be an extremely good reason to impose one, and the order itself must be narrowly tailored to mitigate the harm while permitting all other speech to continue.

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