Fulton County District Attorney Fani Willis (D) and lawyers for a defendant in former President Trump’s extortion case in Georgia will face off in court Tuesday as the state’s top prosecutor seeks to secure Harrison Floyd’s bond on inflammatory social media charges -Revoke posts.
Floyd, a leader of Black Voices for Trump who was indicted alongside the former president, could see his freedom in court revoked over social media posts that prosecutors have portrayed as an attempt to obstruct justice by intimidating future witnesses and communicate “directly and indirectly” with fellow defendants in the case.
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Floyd is the first of 19 defendants facing incarceration because of his posts. Prosecutors allege he is violating the conditions of interim release he agreed to after being charged in the sprawling case involving an alleged criminal enterprise aimed at overturning the results of the 2020 presidential election in Georgia to fake trump in favor of advantages.
It raises questions about how Willis might use Trump’s own inflammatory social media to address similar concerns as a future trial approaches.
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“Trump’s free speech claim will be stronger than any of his other co-defendants’ claims because he is running for president,” said Kay Levine, a law professor at Emory University. “But I still don’t think that entitles him to literally say anything — in person, at a press conference, on social media or in any other forum.”
Willis’ motion targets several posts Floyd made this month to his 26,000 followers on X, the platform formerly known as Twitter, and in a podcast interview. The posts mention well-known state witnesses, including Georgia Secretary of State Brad Raffensperger and State Department Chief Operating Officer Gabe Sterling.
“Look, the truth is that @GaSecofState and @GabrielSterling are the parts of this [shit] You should be mad,” Floyd tweeted on November 7, replacing the slur with a poop emoji.
Floyd also made several posts about Fulton County poll worker Ruby Freeman, who is directly related to the charges he faces after he allegedly tried to get her to make false statements about voting operations under the guise of offering her help to do in 2020. He has pleaded not guilty.
Willis wrote in her filing that these posts led to “renewed threats of violence” against Freeman.
Both Floyd and Trump agreed to pretrial release conditions that stipulate that they not communicate “in any way” with co-defendants or witnesses about the facts of the case. They are also not allowed to intimidate co-defendants or witnesses in the case.
Floyd’s attorney is likely to argue Tuesday that the Trump co-defendant is exercising his First Amendment right to question the validity of the state’s lawsuit by posting on social media and that the posts do not show witness intimidation, Levine said. But prosecutors could argue that witness intimidation in the age of social media “involves much more than just visualizing knives and guns,” she said.
“I would expect her office to say it’s foolish to think that he’s just questioning the credibility of these witnesses,” Levine said. “The time for this is being tested.”
Trump’s lawyers have made similar arguments in the former president’s other legal matters, where his social media habits have already caused problems. Judges in both Washington, D.C., and New York have issued voluntary orders banning Trump from commenting after inflammatory posts about people connected to the case.
During an appeal Monday challenging the Washington gag order, Trump’s lawyer argued that restrictions would limit protected political speech in violation of the former president’s First Amendment rights.
But when free speech intersects with criminal law, it is judged differently, Levine said.
“We will not allow people to claim their freedom of expression by shouting ‘fire’ in a crowded theater,” she said. “You may speak, but you must experience the consequences yourself.
“Criminal law comes into play not only in response to the right to freedom of expression; That’s just not how our system works,” she added.
Both gag orders are temporarily suspended while appeals courts consider their legality.
However, no judge has attempted to detain the former president before his various trials, despite similarly inflammatory social media posts about his legal troubles.
Fulton County Superior Court Judge Scott McAfee will ultimately decide whether to grant the prosecution’s request to detain Floyd after Tuesday’s hearing. Unlike the other 18 defendants in the case, Floyd surrendered in August without negotiating his bail in advance, which resulted in him spending several days in jail before he could agree to bail.
If McAfee does indeed return Floyd to prison before trial, it could increase the likelihood that Trump’s social media will face similar scrutiny.
“Conceptually, judges like to stay consistent,” Levine said. “It would be up to the Trump defense team to explain why he should be treated differently than his co-defendant, who behaved in the same way.”
Trump’s status as a former president and the undisputed front-runner in the 2024 Republican presidential primary – details that have complicated judges’ efforts to bar him as a criminal defendant and party in civil cases across the board – would likely play a central role in such a move Decision.
“Even if the behavior is the same or almost the same, there are so many more considerations when comparing the former president to his.” [Secret Service] Detail, in prison,” Levine said.
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