The First Amendment and Putting a Muzzle on Donald Trump

In a blog post I wrote a few weeks ago, Trump, Gag Orders, and the First Amendment, I laid out the problems with prior restraints and preventing citizens from criticizing the government.

The D.C. gag order began on September 15, The DOJ requested a gag order for Trump. The request is here. Basically, the DOJ wanted the court to stop Trump from:

• • Talking about the credibility of prospective witnesses
  • Making any “disparaging” statements about protective witnesses, parties, court personnel

The rationale was that Trump knows his words incite violence.

Trump, of course, opposed the gag order.

On October 17, after a lengthy hearing, Chutkan issued the gag order. (It is here.) Here is the key part of the order:

All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.

Here are the possible problems:

First, the special counsel is a public figure and, as I explained here, courts are reluctant to prevent citizens from criticizing public figures, particularly those who hold government power. The primary basis of freedom of speech and the press is to allow citizens to criticize the government.

In contrast, the gag order in the Manhattan case prevents Trump from talking about the court clerk, who is not a public figure. Trump tried to argue that she was, but that argument didn’t fly.

Second, the order uses the word “target” which is vague. Does that mean he can’t mention them? Say anything at all negative about them?

In contrast, the gag order in the Manhattan case prevented Trump from making public statements about the court clerk. His argument is that the clerk is preventing him from getting a fair trial. Nothing stops him from mentioning her in court filings and appeals, which is the place to argue that he isn’t getting a fair trial.

Third, Trump is precluded from attacking, “any reasonably foreseeable witness or the substance of their testimony.” This is the tricky part because many of the witnesses are public figures and you know (because you read the blog I offered) that a cornerstone of the First Amendment is that citizens can criticize public figures.

Erwin Chemerinsky thinks the order is unconstitutional

Erwin Chemerinsky, a leading constitutional scholar (who, unlike other well-known constitutional scholars, does not shoot off his mouth without thinking) has called the order unconstitutional. You can read his arguments here. Specifically, he says that “basic 1st Amendment principles cast serious doubt on the judge’s order.” He says that the prior restraint is a problem, as is the clear desire to protect the special counsel (a government official) from harsh criticism.

Chemerinsky offers other reasons as well: The witnesses are public officials and it is unlikely that someone like William Barr will feel intimidated by Trump.

We are currently waiting for the appellate court to issue a decision. 

I think we can expect the order to be modified.