Donald Trump is appealing the gag order that Judge Tanya Chutkan issued in the federal ‘election overturn’ trial.
The appeal is standard operating procedure – yet speaks to a greater conversation surrounding the former president and his First Amendment rights.
The Gag Order
On October 16th, Chutkan issued a gag order that prevented Trump from talking about court staff, or prosecutors, or potential witnesses.
The gag order showed that Chutkan was receptive to prosecutor’s arguments that Trump’s comments, or social media posts, had the capacity to harass or intimidate people sufficiently to interfere with the criminal justice proceedings that Trump was involved in.
Naturally, Trump appealed the gag order – and frankly, he’s got a strong argument.
“No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office – let alone the leading candidate for President of the United States,” wrote Trump attorney John Sauer in the appeal. “Given the Gag Order’s extraordinary nature, one would expect an extraordinary justification for it. Yet none exists.”
But Trump’s legal team isn’t the only one concerned with the First Amendment restrictions that the gag order imposes. The American Civil Liberties Union (ACLU), an oft-critic of Trump, also expressed concerns.
“No modern-day president did more damage to civil liberties and civil rights than President Trump,” said ACLU executive director Anthony Romero. “But if we allow his free speech rights to be abridged, we know that other unpopular voices – even ones with 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.”
Left-wing constitutional scholar Erwin Chemerinsky also expressed concerns over the gag order. “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.
Yet “the law is clear that speech can’t be restricted to prevent government officials from being criticized or even vilified.”
Chemerinsky continued: “The Supreme Court has repeatedly held that the 1st Amendment protects a right to criticize government official, even harshly. In New York Times Co. vs. Sullivan (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.”
Donald Trump Must Be Allowed to Speak
Gagging Trump set a concerning precedent. Trump, as an American citizen, should be more than welcome to criticize the judicial system. The notion that Trump’s tweets are going to intimidate federal prosecutors from prosecuting vigorously is silly stuff.
Similarly, the idea that Chutkan herself would be influenced in Trump’s favor on account of Trump’s criticisms is implausible – and ultimately falls on Chutkan herself. No, the gag order doesn’t serve a practically justifiable purpose, but rather serves to muzzle a guy that everyone is sick of hearing speak.
Understandable, but unconstitutional here.
Trump should be able to express his views on the judicial system that he has found himself engulfed within.
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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