• by Wendy Davis  @wendyndavis, April 30, 2024

New York Judge Juan Merchan, who is presiding over former President Donald Trump's criminal hush money trial, on Tuesday held him in contempt for violating a gag order by reposting other Truth Social users' comments to his followers on the platform and on his campaign website.

Merchan fined Trump $9,000 and threatened to jail him over future violations.

The judge said in the ruling that he was treating Trump's reposts as his own statements -- even though the comments were originally posted by third parties.

That decision might not square with Section 230 of the Communications Decency Act, which protects interactive companies as well as their users from liability for posting third-party content, according to Santa Clara University law professor Eric Goldman.

“Several courts have held that Section 230 preempts liability for 'retweeting' (which I think would extend to “retruthing” or whatever the analogous verb is on Truth Social),” Goldman, an expert on Section 230, wrote in a Tuesday blog post. “Thus, from a Section 230 standpoint, it’s a bit jarring to see the court impose liability for retweeting.”

At the same time, Goldman wrote, it's not clear how Section 230 applies to gag orders aimed at preventing harassment. In those situations, gag orders don't concern posts' content, but the fact that they could spur followers to intimidate the posts' subjects.

Merchan's gag order prohibited Trump from making any public statements about court staff, employees of the District Attorney and their family members, and potential witnesses or jurors involved in his ongoing trial for allegedly falsifying records relating to a $130,000 payment to porn star Stormy Daniels.

Since the trial began, Trump has reposted other people's Truth Social remarks on numerous occasions. The ruling issued on Tuesday dealt with 10 of those reposts.

Trump “curated the posts at issue and took the necessary steps to publish the posts on his Truth Social account and on his campaign website,” Merchan wrote. “In doing so, he endorsed the posts with one purpose in mind -- to maximize viewership and to communicate his stamp of approval."