# United States v. Harold E. Ford > Court of Appeals for the Sixth Circuit · September 25, 1987 · 830 F.2d 596 URL: https://www.frixlaw.com/law-library/cases/9476779 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Harold E. FORD, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** September 25, 1987 - **Citations:** 830 F.2d 596; 14 Media L. Rep. (BNA) 1901; 1987 U.S. App. LEXIS 13839 - **Precedential status:** Published - **Opinion:** Concurrence by Nelson - **Judges:** Krupansky, Merritt, Nelson - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476779 ## How later opinions describe it (automated extraction) - holding that a broad, interlocutory "gag" order in a mail and bank fraud case involving a congressman which prohibited the congressman from discussing his case, even with other members of Congress or on the floor of the House of Representatives was (1) "appealable as [a 28 U.S… - observing that “existing legal precedent defines the Sixth Amendment right to a fair and impartial trial as a right that inures not only to the sole benefit of a defendant, but rather one that inures equally to the state as the representative of the people.” - stating that “[t]he protection of political speech which concerned the court in [Near v. Minnesota, 283 U.S. 697 (1931)] is at the core of the First Amendment” - discussing “no comment” gag orders and stating that “such broadly based restrictions on speech in connection with litigation are seldom, if ever, justified,” particularly in criminal cases - finding jurisdiction under collateral order doctrine to consider appeal by criminal defendant politician contesting validity of gag order ## Opinion text DAVID A. NELSON, Circuit Judge, concurring. I concur in the judgment vacating the trial court’s order. On its face, the order seems to tell Congressman Ford that he may make no extrajudicial statement of any kind, if a reasonable person would expect it to be disseminated by means of public communication, except for (1) a statement made on the floor of the United States House of Representatives, or in a committee or subcommittee of that body, or in communication with the membership of the House; (2) a protestation of innocence; and (3) a solicitation of funds to aid in the defense of the criminal case. Such an order would prevent Mr. Ford from calling a press conference in Memphis and announcing, to take a purely hypothetical example, that he has decided to oppose any increase in the minimum wage because of the adverse effect such an increase would have on the employment opportunities of black teenagers in his district. The order was surely not intended to be that sweeping, but it says what it says, and what it says is unquestionably over-broad. To permit such an order to stand, over objection, would be unthinkable — as I have no doubt the trial court would agree. The more difficult question is whether the trial court could properly enjoin Congressman Ford from publicly defending himself, outside the courtroom and outside the House of Representatives, against the criminal charges that have been publicly brought against him. On the record now before us, I do not see how that question could be answered in the affirmative. A decision on whether to enjoin the defendant in a criminal case from making public statements always requires a careful exercise of judicial discretion, and in the case at bar that discretion would have to be exercised not only in the light of the First Amendment rights that everyone possesses, but also in the light of Mr. Ford’s position as a Member of Congress. The considerations discussed in Part III of Judge Merritt’s opinion lead me to conclude that whether or not the argument made by amici curiae is correct as a matter of constitutional law, 1 it would almost invariably be an abuse of judicial discretion for a court to enjoin a Member of Congress from publicly defending his character after he has been indicted for violations of the criminal law. I fully agree with Judge Krupansky’s thought that an elected official, when called to the bar of justice, is entitled to no greater personal rights than anyone else would have in such a situation, but it seems to me that the constituents of the official have interests that the courts are not free to ignore. The character of our elected representatives is of concern to all of us, as citizens, and when serious questions have been raised about the character of a person who represents us, or aspires to, we have a legitimate interest in hearing what that person may wish to say on the subject. Within recent memory a President of the United States declared, on national television, “I am not a crook.” If the Presi *606 dent had been indicted, as Congressman Ford has been, it would have been unseemly, in my view, for the courts to put the public in the position of having to hear such a person say “I am not a crook, and I would like to explain to you in detail why I am not, but the United States District Court for the Eastern District of Tennessee will not let me.” Regardless of whether and to what extent an indicted official’s personal interest in offering a public defense of his conduct may be protected by the First Amendment, it seems to me that the interests of the public, in a representative democracy, militate strongly in favor of letting the official speak freely. The public’s interests do not extend to allowing the official to engage in tortious conduct toward his accusors, of course, and I am not certain, in a case such as this, how far the First Amendment and the separation of powers doctrine may go in constitutionalizing the public’s legitimate interests. What does seem clear to me, in this case, is that our duty to control the exercise of the trial court’s discretion would not be discharged properly if we sanctioned the kind of injunction the trial court intended to enter here. . It can make a significant difference, of course, whether the Constitution requires a particular answer to a question that the courts would decide the same way if left to their own resources. Congress can, through appropriate legislation, instruct the courts on how non-constitutional questions are to be decided, but it cannot require the courts to accept such instruction on the determination of constitutional questions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476779. Public record. Not legal advice.