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Lawyers representing Sam Bankman-Fried, or SBF, have filed an appeal claiming the former FTX CEO’s bail was revoked “in retaliation for him exercising his First Amendment rights” and not witness tampering as alleged.

In an Aug. 25 filing in the United States Court of Appeals for the Second Circuit, SBF’s legal team filed a motion seeking to have him released before his October trial. According to his lawyers, Judge Lewis Kaplan revoking SBF’s bail on Aug. 11 was “improper,” claiming his actions of speaking to the press and releasing information about former Alameda Research CEO Caroline Ellison were part of his First Amendment rights.

According to the appeal, SBF’s lawyers questioned the manner of “intimidation or threats” against Ellison by the former FTX CEO speaking to reporters at The New York Times, which led to some of her private journals being published in an article. The New York Times submitted its own filing in the case, claiming the public had a “legitimate interest” in the information and citing similar First Amendment concerns.

“Under prevailing precedent, Mr. Bankman-Fried’s communications to the Times reporter were protected First Amendment activity,” said the Aug. 25 appeal. “Neither the Government nor the trial court have cited any case law, and the defense is aware of none, where a defendant’s provision of newsworthy information to a journalist has ever been construed as witness tampering.”

The appeal built upon a filing in the U.S. District Court for the Southern District of New York, which claimed Bankman-Fried’s access to discovery materials before his criminal trial was inadequate due to his confinement to the Metropolitan Detention Center in Brooklyn. SBF has roughly five weeks until his first trial is scheduled to begin on Oct. 3, and the Justice Department has produced millions of pages of discovery materials ahead of the court date.

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Kaplan had already approved provisions allowing SBF to have access to a courthouse cell block with his attorneys, provided they gave 48 hours’ notice. However, Bankman-Fried’s lawyers have called these accommodations inadequate, given the limited time before trial and the amount of information to review.

In October, Bankman-Fried will face seven criminal counts related to alleged fraud and misuse of customer funds at FTX and Alameda. There will be another trial scheduled for March 2024 in which the former CEO faces five criminal counts. He has pleaded not guilty to all charges.

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