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Prominent Advocates Call for the Lifting of Bankman-Fried’s Gag Order

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Sam Bankman-Fried, the owner of FTX, finds himself backed by distinguished allies as he strives to avoid jail time and retain his freedom of speech in the lead-up to his October trial. These allies include the New York Times and Harvard Law School Professor Laurence Tribe. This follows a temporary gag order placed on Bankman-Fried and others associated with his case, limiting their interactions with the press. This order came after his involvement in a New York Times article profiling Caroline Ellison, his former girlfriend and ex-CEO of Alameda Research.

Bankman-Fried’s legal team accepted the gag order but also asked for similar orders be placed on John J Ray III, the prosecution, and other potential sources. They argued that all the negative media coverage and THE ad hominem attacks by Ray against Bankman-Fried, had created a toxic environment that forced him to respond.

Mr. Bankman-Fried has a constitutional right—when sought out by reporters for his perspective on stories they are writing—to avoid projecting a false image of someone who is media-shy or, worse, someone whose consciousness of guilt makes him shun the media rather than being forthcoming.

In an affidavit submitted to the U.S. federal court, set to host Bankman-Fried’s criminal trial, Professor Tribe stated that the embattled crypto figure was entitled to express his views on the case to the media. The New York Times, alongside other media organizations, argued that the gag order obstructs their ability to report on matters of public interest, thereby infringing upon First Amendment rights. Tribe penned in his letter to Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York, “Mr. Bankman-Fried has a constitutional right […] to avoid projecting a false image of someone who is media-shy or, worse, someone whose consciousness of guilt makes him shun the media rather than being forthcoming.”

Tribe’s Independent Stand

Despite being retained by the law firm representing Joseph Bankman-Fried, the father of the former FTX CEO, Tribe insisted that his 23-page affidavit was submitted in his individual capacity as a renowned constitutional law expert. One aspect of the disagreement revolves around whether Bankman-Fried was the chief source of personal documents pertaining to Ellison, included in the story. Prosecutors believe this originated from Bankman-Fried, citing it as part of a pattern of witness tampering and dubious behavior ahead of the trial.

Against the Gag Order

Tribe argued against the gag order, intended to isolate Bankman-Fried, along with the defense and prosecution, from further media interactions. He wrote to the court:

The order effectively precludes Mr. Bankman-Fried (as well as surrogates, family members, spokespersons, representatives, and volunteers who speak at his instigation) from saying anything that might influence the public’s perception of him in ways that could help make the presumption of his innocence more than a slogan.

Media’s Take on the Issue

The New York Times also voiced opposition to Kaplan’s gag order, deeming it excessively restrictive given the public interest in the case. David McCraw, the deputy general counsel for the Times, argued that limiting communication with the press necessitates balancing First Amendment rights with ensuring a fair trial and effective justice administration.

Further Support for Lifting the Gag Order

Additional support for lifting the gag order came from a documentary production company working on a film about FTX and the criminal case, as well as the Reporters Committee for Freedom of the Press, a nonprofit. These parties urged Kaplan to modify his gag order, allowing Bankman-Fried and others to continue dialogues with journalists.

After considering the uncommon influx of input, Judge Kaplan scheduled another hearing on the issue. The outcomes of this hearing could determine whether Bankman-Fried is jailed pending trial and whether the temporary gag order will extend throughout the criminal trial scheduled to commence on Oct. 2.

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