This seems to me clearly unconstitutional: It’s an order compelling speech, on threat of imprisonment, which would itself normally be a First Amendment violation; but on top of that, it was issued without a trial, and thus without any final factual findings supporting its validity.
I’m aware that, once someone is convicted, courts have considerable latitude to impose speech restrictions as a condition of parole or probation, and might even be able to impose speech compulsions. But that is after someone’s guilt has been proven beyond a reasonable doubt in a criminal trial. The defendant here hasn’t been convicted of anything; she continues to be presumed innocent until proven guilty.
And courts have held (quite rightly, I think) that the government has quite limited powers to restrict defendants’ speech as a condition of bail. The proper purposes of bail conditions are to assure the defendant’s presence at trial, to prevent the defendant from attacking witnesses or victims, and to prevent the defendant from committing further while released; any speech restrictions must therefore be tied to those purposes. See, e.g., U.S. v. Spilotro (8th Cir. 1986); State v. Braun (Wis. Ct. App. 1989). Compare also Leary v. U.S. (5th Cir. 1970) (rejecting the government’s argument that Timothy Leary shouldn’t be released on bail because of the risk that he would advocate for illegal drug use; “if the appellant’s eligibility to be enlarged on bail under the Eighth Amendment may be lost because he exercises his first amendment right to freedom of speech and to freedom of the press, then Section 3146 imposes an unconstitutional condition”).
Here, the conditions seem to be tied simply to correcting what the magistrate judge thinks are factual errors. But a court can’t just compel someone who hasn’t been convicted of any crime to recant her accusations against government officials. If the statements are found to be false at a trial, that might lead to damages liability or criminal punishment — or potentially even an injunction. If Ms. Lipsen is found to be guilty of some other crime, it’s possible that some speech restrictions could be imposed on her as a condition of any probation or parole (though I’m not sure that these restrictions properly can be). But absent any such trial and verdict, the bail condition seems to be a clear violation of the First Amendment.
It’s possible that the ordered recantation was negotiated among prosecutors, defense counsel and the judge. But I don’t think this can make the condition constitutional: The legal system shouldn’t be able to pressure defendants to surrender their free speech rights this way, by threatening them with continued loss of liberty if they don’t include speech compulsions (or speech restrictions) as part of the negotiations. The “unconstitutional conditions” doctrine ought to be in full force here, it seems to me.
Thanks to Bob Woolley for the pointer, and to Wil Wheaton for initially publicizing the order.