Floyd’s attorneys argued his posts were not threatening and amounted to defending himself in the court of public opinion.
“He has a right to make political speech,” argued attorney Christopher Kachouroff. “He has the right to talk about the facts of this case on Twitter., as long as he doesn’t communicate with the defendants and witnesses.”
McAfee ruled Floyd had technically violated the terms of his bond agreement but said the violations did not merit time in jail and that some of the bond conditions needed more specificity to take social media into account.
Floyd was one of 19 people – including former President Donald Trump – charged in August in what prosecutors say was a “criminal enterprise” that sought to overturn Democrat Joe Biden’s Georgia victory in the 2020 presidential election. The former head of Black Voices for Trump, Floyd faces three felony counts for his role in allegedly pressuring a Fulton County election worker to confess to false voting fraud allegations.
Floyd’s bond agreement had prohibited him from communicating - directly or indirectly - with codefendants or witnesses to discuss the details of the case.
As evidence he had violated it , Willis cited 21 social media posts. In one of those posts, Floyd tagged attorney Jenna Ellis, who recently pleaded guilty to one felony count and is now a witness for the prosecution. In the post, Floyd questioned Ellis’ ethics, suggested she was “stealing” money raised for her defense and urged her to return the money she had raised.
Through her attorney, Ellis told prosecutors she saw the post.
“I saw it a couple days after it was posted,” Ellis said in a message shared with prosecutors. “Yes, I believe it was meant to both intimidate and harass me and encourage others to harass me, which others have done.”
Willis also highlighted Floyd social media posts about election worker Ruby Freeman, who Trump falsely accused of voting fraud; Secretary of State Brad Raffensperger; and Gabriel Sterling, chief operating officer for the secretary of state.
Von DuBose, an attorney for Freeman, testified that threats against her spiked following Floyd’s social media comments.
Floyd’s attorneys argued his posts were not threatening and did not violate the terms of his bond. Sterling, for example, testified that he saw Floyd’s posts. But under cross examination from Kachouroff, Sterling said he did not feel threatened enough to contact law enforcement.
McAfee said he was not convinced that Floyd was trying to intimidate witnesses with his posts.
”We don’t see in the wording an explicit indication that something ought to be done about these individuals or that they should be targeted in some way,” the judge said. “I read these as seeing more that someone is wanting to defend his case in a very public way.”
McAfee said he believed Floyd had “technically” violated his bond condition that he not indirectly communicate with a potential witness and discuss the facts of the case. He also said he did not buy the defense’s argument that Floyd did not know Ellis, Sterling and Freeman were going to be witnesses in the case.
”We can’t hide behind a veil of ignorance when certain witnesses have testified before the special grand jury, are very much known to be involved in the facts of this case or just recently pleaded guilty,” McAfee said.
The judge said Floyd’s bond conditions need to be modified. That led to a hurried meeting of prosecutors and defense lawyers who sought to hash out an agreement.
McAfee’s decision could have implications down the road for Trump, who often uses social media to attack his opponents and has been hit with a gag order in a federal case against him.
Kachouroff praised the judge’s decision after the hearing, but noted it’s likely to be revised in the days ahead.
“It’s gonna change. You know he’s not going to muzzle him forever,” he said. “He has to send a message and I think what the judge did was fair. I don’t like it but it’s within the realm of reason.”
McAfee had ordered Floyd to attend the hearing and he was hard to miss - wearing a bright green jacket - as watched the proceedings from the defense table.
At one point Willis referred to Trump as a defendant.
“President Trump,” Floyd interjected.
That drew a rebuke from the judge, who said it wasn’t his time to speak.
Floyd declined to comment after the hearing, in light of the order. But while the parties were hammering out the details of the revised order, he expressed relief he wasn’t going to jail.
“I get to go home to Thanksgiving with my daughter,” Floyd said. “That’s how I feel.”