Over the weekend, Judge Tanya Chutkan (who is overseeing the federal election interference case against Donald Trump) reinstated her gag order against the former president.
The gag order, issued after Trump criticized Chutkan, the court, and the prosecutors, has raised controversy and debate for its First Amendment implications.
Some have celebrated the gag order, as a necessary method to reign in an out of control defendant. Others, me included, have reservations, however, about imposing speech limitations on a US citizen – notably, a former president currently campaigning for president.
First Amendment Violation?
I’m not the only one with reservations. Even people, and entities, that have been critical of Trump in the past have concerns about Chutkin’s gag order. The American Civil Liberties Union, for example, who long ago made a name for themselves as principled free speech defenders, argued “that the gag order slapped on” Trump “violates the U.S. Constitution.”
“The ACLU, a frequent and vocal critic of Trump that applauded his criminal indictment in the federal case in Washington, D.C., said that the restriction placed on his speech run afoul of the First Amendment,” CNBC reported.
ACLU executive director Anthony Romero elaborated: “No modern-day president did more damage to civil liberties and civil rights than President Trump. But if we allow his free speech rights to be abridged, we know that other unpopular voices – even ones we agree with – will also be silenced.”
Romero continued: “As much as we disagree with Donald Trump’s policies, everyone is entitled to the same First Amendment protection against gag orders that are too broad and too vague.”
I don’t always agree with the ACLU (their advocacy to allow transwomen to play women’s sports doesn’t make sense to me, for example). But the ACLU and I share concerns over the way Trump’s speech is being restricted.
Also dissenting against Chutkin’s gag order – more notably, perhaps – was constitutional scholar Erwin Chemerinsky.
“What is particularly troubling about Chutkan’s order is that it seems primarily concerned with protecting prosecutors and court personnel from Trump’s vitriol,” Chemerinsky wrote in the Los Angeles Times. Yet, “the law is clear that speech can’t be restricted to prevent government officials from being criticized or even vilified.”
“The Supreme Court has repeatedly held that the 1st Amendment protects a right to criticize government official, even harshly,” Chemerinsky continued. “In New York Times Co. vs. Sillivan (1964), the court unanimously declared that the amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Chemerinsky continues, summarily dismissing the notion that Trump’s criticisms will interfere with the court’s ability to conduct a fair trial. “It is impossible to imagine that Trump’s attacks will change how the prosecutors behave,” Chemerinsky wrote.
“Ultimately, the judge imposed a gag order on Trump because his speech is often unpleasant and offensive. But that is simply not a basis for restricting speech under the 1st Amendment, ”Chemerinsky wrote. “We may loathe what Trump says, but we must defend his right to say it.”
In addition to infringing upon Trump’s First Amendment rights, Chutkan’s gag order also amplifies the impression that Trump is being prosecuted for political reasons, rather than legal reasons.
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.
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