Roger Stone’s federal trial and the judge’s consideration of a “gag order” brings up the interesting conflict between the right to free speech and the guarantee of a fair trial. Failure to protect trial rights in and out of the courtroom is one of the grounds for criminal appeals.

A gag order prohibits prosecutors and defendants from publicly commenting about their case and criminal trial. These are usually intended to protect a defendant from the prosecutor’s excesses, because they usually have a greater opportunity to prejudice their fair trial rights in the public. It is also used to assure that an unbiased and unaffected jury that can render a fair verdict.

However, the gag order in this case is being sought against Roger Stone. Defendants possess a constitutional right to tell their story if they are facing imprisonment. This is especially important when prosecutors already filed indictments containing a long list of charges.

The US Supreme Court, in fact, addressed this issue almost 30 years ago when it ruled that a defense attorney’s duties are not restricted to the inside of the courthouse. They must, as part of their to duty to zealously represent their clients, advocate their client’s position to the public. This duty is especially significant when a client’s right to a fair trial is hampered by a prosecutor’s large ranging and descriptive indictment.

While considering a gag order, courts must also consider other matters. First, whether courts can restrict a defendant’s right to speak if the defendant is creating prejudice against themselves. Next, whether a gag order may be unduly long. A jury impaneled in six months, for example, will not likely remember statements made by a defendant within the immediate future. Finally, the public is also a party to a trial. A gag order should assure that it presents the opportunity for a fair and transparent trial.