by Erwin Chemerinsky
Although I often wish that Donald Trump would shut up, he has a constitutional right not to. A federal judge went too far in restricting his free expression Monday when she imposed a gag order on the former president.
U.S. District Judge Tanya Chutkan, who is presiding over the Washington prosecution of Trump for his role in the Jan. 6, 2021, insurrection, ordered him to refrain from rhetoric targeting prosecutors and court personnel as well as inflammatory statements about likely witnesses.
Chutkan issued the order in response to a motion from special counsel Jack Smith. Trump has said on social media that Smith is “deranged,” that the judge is “a radical Obama hack” and that the court system is “rigged.” He has also attacked potential witnesses such as former Vice President Mike Pence.
“This is not about whether I like the language Mr. Trump uses,” Chutkan said in announcing her decision from the bench. “This is about language that presents a danger to the administration of justice.” She added that Trump’s presidential candidacy “does not give him carte blanche” to threaten public servants. The judge said that “First Amendment protections yield to the administration of justice and to the protection of witnesses.”
I certainly understand Chutkan’s desire to limit such speech, and this is obviously a unique case with no similar precedents. But basic First Amendment principles cast serious doubt on the judge’s order.
The Supreme Court has long held that court orders prohibiting speech constitute “prior restraint” and are allowed only in extraordinary and compelling circumstances. In New York Times Co. v. United States (1971), for example, the justices held that the courts could not constitutionally enjoin newspapers from publishing the Pentagon Papers, a history of America’s involvement in the Vietnam War. The Supreme Court held that there is a strong presumption against orders preventing speech.
Even more to the point, in Nebraska Press Assn. v. Stuart (1976), the justices held that the courts can almost never keep the press from reporting on criminal cases, even when the goal is to protect a defendant’s right to a fair trial.
Although the Supreme Court hasn’t considered gag orders on parties to a case and their lawyers, the same strong presumption should apply against such prior restraints. What is particularly troubling about Chutkan’s order is that it seems primarily concerned with protecting prosecutors and court personnel from Trump’s vitriol. 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 First Amendment protects a right to criticize government officials, even harshly. In New York Times Co. v. 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.”
There is no reason to believe, moreover, that Trump’s criticism of Smith, his staff or court personnel will prevent a fair trial. It is impossible to imagine that Trump’s attacks will change how the prosecutors behave. And given all that Trump has said and all that has been said about the events of Jan. 6, it is inconceivable that more speech will do much more to prejudice prospective jurors.
Whether Chutkan’s order is constitutional insofar as it keeps Trump from speaking about witnesses is a harder question. Trump has already appeared to threaten potential witnesses. The day after his August arraignment, for example, Trump posted on social media: “If you go after me, I’m coming after you.”
But it is important to note that the witnesses Trump has attacked are former high-level officials such as Pence and Attorney General William Barr. (Chutkan ruled that Trump can talk about Pence as a rival for the Republican presidential nomination but not as a potential witness in the case.) There is little reason to believe that Pence or Barr would be intimidated by Trump and strong grounds for protecting criticism of what they did as public officials, even by Trump. Also, Chutkan could have issued a narrower order limited to speech about witnesses but didn’t.
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 First Amendment. We may loathe what Trump says, but we must defend his right to say it.
