BY ELLA LEE | THE HILL
Fulton County District Attorney Fani Willis (D) and lawyers for a defendant in the Georgia racketeering case involving former President Trump will face off in court Tuesday as the state’s top prosecutor seeks to revoke his bond over incendiary social media posts.
Harrison Floyd, a leader of Black Voices for Trump who was charged alongside the former president, could see his pretrial freedom revoked over social media posts that prosecutors have portrayed as an attempt to obstruct justice by intimidating future witnesses and communicating “directly and indirectly” with co-defendants in the case.
Floyd is the first of 19 defendants at risk of being detained over his posts, which prosecutors claim violate the pretrial release conditions he agreed to after being charged in the sweeping case over an alleged criminal enterprise to overturn Georgia’s 2020 presidential election results to benefit Trump.
It raises questions over how Willis might approach similar concerns with Trump’s own inflammatory social media as a future trial creeps closer.
“The Trump claim to free speech is going to be stronger than the claims of any of the other co-defendants because he’s running for president,” said Kay Levine, a law professor at Emory University. “But I still don’t think that entitles him to say literally anything – in person, at a press conference, on social media, in any other forum.”
Willis’ motion targets multiple 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 make mention of known state witnesses including Georgia Secretary of State Brad Raffensperger and Gabe Sterling, chief operating officer of the secretary of state’s office.
“Look, the truth is that @GaSecofState & @GabrielSterling are the pieces of [shit] you should be mad at,” Floyd tweeted Nov. 7, using a poop emoji to replace the expletive.
Floyd also made several posts about Fulton County poll worker Ruby Freeman, who is directly linked to the charges he faces after allegedly attempting to convince her to make false statements about 2020 election operations under the guise of offering her help. He has pleaded not guilty.
Willis wrote in her filing that those posts have led to “renewed threats of violence” against Freeman.
Both Floyd and Trump agreed to pretrial release conditions that require they not communicate “in any way” about the facts of the case with co-defendants and witnesses. They also may not intimidate co-defendants or witnesses in the case.
Floyd’s counsel will likely argue Tuesday that the Trump co-defendant is exercising his First Amendment right to question the validity of the state’s case by posting on social media and that the posts don’t show witness intimidation, Levine said. Prosecutors, however, could argue that witness intimidation in an age of social media involves “a lot more than just visualizing knives and guns,” she said.
“I would expect her office to say it is foolish to think that all he is doing is legitimately questioning the credibility of these witnesses,” Levine said. “The time to do that is at trial.”
Trump’s lawyers have made similar arguments in the former president’s other legal matters, where his social media habits have already wrought trouble. In both Washington and New York, judges have imposed gag orders barring Trump from commenting on individuals linked to the case after inflammatory posts.
During an appeals argument Monday contesting the Washington gag order, Trump’s attorney argued that limitations would chill protected political speech in violation of the former president’s First Amendment rights.
But when free speech intersects with criminal law, it’s judged differently, Levine said.
“We don’t let people claim free speech when they shout ‘fire’ in a crowded theater,” she said. “You are allowed to speak, but the consequences of that you’re going to have to experience for yourself.
“The criminal law does not just fold in response to claims of free speech; that’s just not how our system works,” she added.
Both gag orders are temporarily paused as appeals courts consider their legality.
However, no judge has attempted to detain the former president ahead of his various trials despite similarly inflammatory social media posts about his legal woes.
Fulton County Superior Court Judge Scott McAfee will ultimately decide whether to approve prosecutors’ 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, causing him to spend multiple days in jail before reaching a bail agreement.
If McAfee does return Floyd to jail ahead of trial, it could increase the probability that Trump’s social media would be similarly scrutinized.
“Conceptually, judges like to stay consistent,” Levine said. “It would be up to the Trump defense team to explain why he ought to be treated differently than his co-defendant who engaged in the same behavior.”
Trump’s status as a former president and the undisputed frontrunner in the 2024 GOP presidential primary – details that have complicated judges’ efforts to rein him in as a criminal defendant and party in civil matters across the board – would likely play a central role in any such decision.
“Even if the behavior is the same, or very close to the same, there are so many more considerations that go into whether you would put the former president, with his [Secret Service] detail, in jail,” Levine said.