I wrote recently to suggest that Judge Chutkan’s gag order, limiting former President Donald Trump’s ability to criticize the judicial system, infringed upon his First Amendment rights. I’m not alone in my view – I cited the ACLU and constitutional scholar Erwin Chemerinsky, who both felt Chutkan’s order violates the constitution. Yet, others are celebrating the gag order as an overdue muzzle against the outspoken former president. Norman Eisen and Joshua Kolb, writing for MSNBC, for example, endorsed the gag order, pointing out that “while First Amendment protections are rightly cherished, they are not absolute.”
Sure, First Amendment protections are not absolute – but they protect criticism of the government, including the judicial system.
Defending the Gag Order
Eisen, who formerly served as an impeachment counselor to the House Judiciary Committee, and Kolb, who formerly clerked for the Senate Judiciary Committee, acknowledged that Chutkan’s gag order was a close call legally. But that “Trump’s own statements during the litigation of the gag order have further tilted” the balance in favor of enforcing the gag order.
“Trump’s conduct over the period during which the gag order was temporarily stayed takes a hard freedom of speech question that could have gone either way and provides significant support for gagging him,” Eisen and Kolb wrote for MSNBC. “While First Amendment protections are rightly cherished, they are not absolute. They must yield when it comes to the protection of witnesses, court personnel and proceedings.”
Eisen and Kolb are referencing Trump’s social media posts as the justification for restricting his First Amendment rights; the pair’s prime example: Trump’s Truth Social post: “IF YOU GO AFTER ME, I’M COMING AFTER YOU.” To me, the post doesn’t come close to justifying the restriction of First Amendment rights. For starters, the post was vague. The post could have been directed at any number of people. And “coming after you” could have meant any number of things. And even if the post had been directed explicitly at the judicial system – at the judge, or the prosecutor, or prospective witness Mike Pence (who happens to be former vice president) – Trump has a constitutional right to criticize the government. Trump even has the right to use vehement, sharply pointed, ugly language in criticizing the government.
“Trump’s own behavior has significantly undermined what was a close legal question,” Eisen and Kolb wrote. “We understand the criticisms of Chutkan’s order, and we strongly support Trump’s right to speak freely about almost everything. The importance of that universal American right is only magnified when the person being singled out is a presidential candidate…But free speech is not absolute and in some cases, tightly focused limitations are appropriate to protect the administration of justice and witnesses and officials who are part of it. This is one of those cases.”
Again, I disagree. As Chemerinsky, points out in his LA Times op-ed, nothing Trump posts on social media is going to interfere with the administration of justice. The federal prosecutors whose careers are now, and will forever be, tied to Trump’s prosecution, are not going to make strategic modifications because Trump was an online bully. The prosecutors are not going to take it easy on Trump because they felt intimidated. Trump is going to be prosecuted vigorously. And while Trump is being prosecuted vigorously, he should enjoy the full protections of the First Amendment.
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.