Yes, I know that a negotiated plea deal is different than an order from the court.
Specifically it's contract law, which is pretty much whatever the parties agree to. The terms of the agreement aren't limited to statutory or constitutional provisions. You just can't force the other party to agree to something unconscionable, and that's a very low bar. If the terms of the settlement require Tucker Carlson to do his show dressed as a giant chicken for a week, and Fox agrees to that, then that's enforceable.
My question was how is ordering a defendant to stand with an embarrassing sign (forced 'speech') legally different from ordering Fox to apologize and admit lying on air (forced 'speech')?
IANAL, but I think for three reasons.
First, there's a foggy line between being compelled to
do something and being compelled to
say something, as far as the First Amendment goes, just as there's a foggy line between restricting speech (as expression) and restricting behavior (as expression). There's a lot of latitude for restricting behavior, and less for restricting speech. Burning the flag: speech or behavior? As anyone who's watched the Supreme Court lately can attest, courts tend to waver on whether some particular thing falls in that fog based on frankly political disposition. So the judge here can say he merely sentenced someone to "do" something (i.e., hold a sign), not say something.
Second, in other cases where this has occurred, the judge gave the convicts the option either to serve jail time or to stand and hold signs and endure the public pillory. Acceptance of the compelled-speech option can serve the legal purpose of waiving their First Amendment rights for this purpose. It's not clear this was an option for the Cleveland woman.
Finally, if a judge passes an unconstitutional sentence, it's up to the defendant to object to it and appeal it. Many defendants in municipal court appear
pro se, or are at best poorly represented. They would also be assessed increased court costs for the appeal, even if they understood their constitutional rights well enough to mount a legally effective appeal. Therefore it might be an economic necessity to accept an unconstitutional penalty. A cardinal rule in court is that you are responsible for asserting your rights, and for paying for having them heard.
Giant corporations like Warner-Lambert and Fox will have armies of lawyers well aware of what sentences can be successfully challenged as unconstitutional, and well enough equipped and funded to do so. Therefore the judge or jury in these cases won't be under any delusion that they can assess a questionably constitutional relief.
I think FOX will very likely go for a plea deal. I think Smartmatic would be wise to accept a plea deal IF FOX apologizes and admits fault.
This is when it really helps to be a real lawyer to understand and predict these things. From what lawyers tell me, these things involve so much experience, complexity, and finesse that it's difficult for lay people to grasp all the nuance that happens in these negotiations.
