Sam Bankman-Fried Might Soon Be Officially Barred From Talking to the Press

On Friday, a federal judge will hear arguments on the gag order Sam Bankman-Fried was put under as part of his bail agreement for alleged witness tampering. It’s the latest court appearance stemming from the FTX founder’s continuous engagement with the press. And it’s not just Silicon Valley that has skin in the game: The New York Times, the Reporters Committee for Freedom of the Press, and a documentarian making a movie about the tech mogul’s fall from grace have all recently filed letters objecting to the order over free speech concerns, urging the presiding judge Lewis Kaplan not to extend it through the criminal trial, which is set to start on October 2. Bankman-Fried faces multiple charges related to the multibillion-dollar fraud he is accused of orchestrating against FTX investors.

“The news media and the public at large has an interest—and a First Amendment right—in hearing from individuals who are willing to speak about issues of public importance, and that includes criminal prosecutions,” Katie Townsend, RCFP’s legal director and deputy executive director, told me. “Parties to criminal prosecutions have valid, interesting, and newsworthy things to say.” Further, Bankman-Fried has a right “to say what he wants about his reputation,” she noted, echoing constitutional scholar Laurence Tribe, who has also weighed in with an affidavit on the defendant’s right to speak about his criminal prosecution. (Tribe is notably of counsel at the law firm that represents Bankman-Fried’s father, but said he submitted his affidavit “in an independent capacity as an expert on constitutional law.”)

The Times’ involvement in the case is no great surprise: Last month, it published excerpts from the private diary entries belonging to Caroline Ellison, Bankman-Fried’s former girlfriend and business partner who is expected to serve as a witness in the criminal case against him. It’s unclear whether Bankman-Fried provided those entries, but his attorneys said their client “shared certain documents” with the Times that “were not produced in discovery, in an effort to give his side of the story.” Federal prosecutors then asked a judge to revoke Bankman-Fried’s house arrest and send him to jail over alleged witness tampering. “The latest incident is an escalation of an ongoing campaign with the press that has now crossed a line,” Assistant US attorney Danielle Sassoon said in a hearing, adding that he’s had over 1,000 phone calls with journalists. While Kaplan did not rule on the request for revocation of bail, he did issue a temporary gag order on Bankman-Fried that prevented him, his attorneys, and others from publicly discussing the case. Bankman-Fried’s lawyers accepted the order but requested that it apply to all “parties and witnesses” in the case, including all current and former employees of FTX and other related entities.

But in their letters challenging the gag order, the Times and RCFP note the alternative tools available to the court to maintain a free trial—such as screening questionnaires for jurors—as well as the high threshold for restricting the speech of non-attorney trial parties and witnesses, given the public’s interest in people like Ellison. “She has confessed to being a central participant in a financial scheme that defrauded investors of billions of dollars—a scheme that was not detected by government regulators and law enforcement agencies until the public’s money had disappeared,” David McCraw, the primary litigator for the Times, wrote in his missive. “It is not surprising that the public wants to know more about who she is and what she did and that news organizations would seek to provide to the public timely, pertinent, and fairly reported information about her, as the Times did in its story.” (Ellison struck an agreement last December, pleading guilty to various charges linked to the alleged scheme. She is cooperating with prosecutors.)

Bankman-Fried’s openness with the media—and its reciprocal interest in him—was a hallmark of his rise and his eventual fall. He repeatedly spoke to reporters while under federal investigation and continued to engage once on house arrest. Puck’s Teddy Schleifer is among those who’ve visited him at his family’s home in Palo Alto, as is best-selling author Michael Lewis, who, when Bankman-Fried was arrested last December, had spent roughly the past year shadowing him for a new book. “He’s the ideal subject. He’s locked up in his house an hour from my house with an ankle monitor,” Lewis recently told the Times, when asked how his legal situation has impacted access. “It’s unbelievably convenient, as long as they keep him there. So, as long as he welcomes me into the house, it’s fine. I’ve been seeing him roughly every two weeks.”

Kaplan will officially rule on whether to revoke Bankman-Fried’s bail either during Friday’s hearing or sometime after; in conjunction, he could decide to extend, broaden, or finalize the gag order. There’s also the possibility that Kaplan does away with the gag order completely.

As for FTX, the company is still working its way through bankruptcy, which the gag order—particularly one extending to potential witnesses—could make “very difficult” for the media to cover, said Townsend. The public is “presumably watching pretty closely to see what happens with the company in connection with not just Bankman-Fried’s prosecution, but people with assets that are still tied up in those proceedings,” she added. “There’s a lot of fallout from the collapse.”