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In its 68-page opinion, the D.C. Circuit Court of Appeals rejected Trump’s arguments that the limited gag order imposed by Judge Tanya S. Chutkan violated his First Amendment rights to free speech. The trial court had prohibited both parties from making statements that “target” witnesses, parties or court staff. Chutkan’s order permitted statements regarding the Biden Administration, the Justice Department, the prosecution of the case, and herself.
The appeals court called out Trump’s effort to frame his case as a prohibited prior restraint on free speech, noting that participants in court cases are subject to different rules than the public at large. “Like any other criminal defendant,” the court wrote, “Mr. Trump does not have an unlimited right to speak.” Restrictions are permissible when they are narrowly tailored to achieve a compelling interest. Here, the court found the gag order necessary to ensure the court’s duty to ensure the fair administration of justice. A political campaign, the court said, does not change that obligation. The court modified the order to prohibit only statements about witnesses regarding their participation in the case. And it bars only statements about prosecution members, court staff or their family members only when made with intent to materially interfere with the case. Jack Smith himself remains fair game.
The gag order in this case, as well as one in a New York state court case, came in the response to Trump’s persistent attacks on his legal adversaries with the same disinformation tactics he used to incite public anger on Jan. 6, 2021. As a defendant in four criminal cases and a civil fraud trial, Trump
Another appeal is currently pending over a gag order imposed in a New York state court. There, Judge Arthur Engoron
While the First Amendment protects free speech, no right is absolute. In
It is not just the defendant who is entitled to a fair trial—the government and the public have that right, too. One risk of a party’s unfettered commentary is that the jury pool will be unfairly tainted by content they encounter in the media, which is not governed by the rules of evidence, such as prohibitions on hearsay.
Trump’s unfettered words also place the safety of witnesses at risk. Fear of threats or harassment could have a chilling effect on their testimony in the short term. Even worse, Trump’s attacks could incite his followers to harm witnesses, prosecutors, or court staff. We’re already seeing it: a
The First Amendment protects the fundamental right of free speech, but like all rights, it must yield where necessary to achieve a compelling interest. As the Supreme Court has said,