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“A federal judge on Monday barred Donald Trump from verbally attacking U.S. prosecutors, court staff and potential witnesses involved in a criminal case that accuses him of trying to overturn his 2020 election loss. U.S. District Judge Tanya Chutkan in Washington, pointing to disparaging social media posts, said she would not allow the former U.S. president, who has pleaded not guilty, to ‘launch a pretrial smear campaign’ against people involved in the case.” Reuters
“Lawyers for Donald Trump on Tuesday filed a notice to appeal [the] partial gag order… Trump, who has pleaded not guilty, has sharply criticized Chutkan's decision as a constraint on his free speech rights.” Reuters
The right is critical of the order, arguing that it violates Trump’s First Amendment rights.
“Mr. Trump will be permitted to attack former Vice President Mike Pence, who’s running against him, ‘but he may not criticize Mr. Pence about the events in this case,’ [Judge Chutkan] said, according to the Washington Post. Hang on: If Mr. Trump shows up to the next Republican primary debate, on Nov. 8, he has to say ‘no comment’ if Mr. Pence pushes him about Jan. 6?…
“That sounds like core political speech and different from insults toward court functionaries. The same goes for special counsel Jack Smith, who’s a political figure in his own right, and who shouldn’t be immune from criticism. If Judge Chutkan thinks it’s over the line for the defendant to call Mr. Smith a ‘thug,’ what about saying he’s ‘politically motivated’?…
“Also, how is Judge Chutkan prepared to punish infractions? She could fine or even jail Mr. Trump, though that would only feed Mr. Trump’s persecution campaign narrative. The better part of wisdom might have been for Judge Chutkan simply to let Mr. Trump continue to yell into the internet to his heart’s content, or at least until he started specifically targeting jurors or court staff.”
Editorial Board, Wall Street Journal
“If Trump’s comments rise to the level of incitement or libel, he can and should be criminally prosecuted or civilly sued. If his comments are provably false or if they shed light on his knowledge, intent, and motivation with respect to the crimes charged, they may be used against him by the prosecution. If Trump’s remarks continue to evince a lack of contrition for his heedlessness and a lack of regard for the rule of law, the court is certain to take that into account in imposing sentence if he is convicted at trial…
“But all that said, as long as Trump’s remarks do not violate the law, the judge has no business telling him — as he campaigns, and as his unencumbered opponents make an issue of the indictments against him — that he can’t talk publicly about the court, the prosecutors, and the witnesses…
“Trump has a right to attack the prosecution and the court — as a defense at trial, as a response to prejudicial statements made by the prosecutor and the judge, and as protected political speech in a campaign in which President Biden, Trump’s top rival, on whom there are no speech restrictions, stands to be the chief beneficiary of a prosecution brought by the Biden Justice Department.”
Andrew C. McCarthy, National Review
“Chutkan has provided Trump with pure political gold… Will he start wearing a gag in public? Will he announce at campaign rallies that he is no longer permitted to describe Smith as a deranged thug?… Will there be social media posts by others stating that which dare not be uttered by Trump? The myriad ways of getting around Chutkan’s silly order are limitless and — properly orchestrated — will garner political support while making a mockery of her.”
George Parry, American Spectator
The left generally supports the order, arguing that it is necessary to protect the integrity of the trial.
The left generally supports the order, arguing that it is necessary to protect the integrity of the trial.
“In this trial, a day after Trump posted, ‘IF YOU GO AFTER ME, I’M COMING AFTER YOU!,’ on Truth Social, a Texas woman left a voice message for Chutkan saying, ‘If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly.’ Trump has called special counsel Smith a ‘thug’ and ‘deranged.’ And Chutkan warned the former president before, telling him to cut out the ‘inflammatory’ rhetoric. Trump didn’t listen…
“Freedom has never existed without any limitation. There are limitations on speech: You can be prosecuted if you use speech to incite violence, for example, or to defraud someone. And there are civil penalties for using your free speech to defame or slander someone. When defendants are indicted for crimes, some of their rights are constrained — they have to show up in court, for example, and may be held in detention before trial. If they pose a threat of physical harm, they may be restrained.”
Jill Filipovic, CNN
“‘I cannot imagine any other criminal case where a defendant is allowed to call a prosecutor deranged or a thug,’ Chutkan said on Monday. ‘No other defendant would be allowed to do it, and I’m not going to allow it in this case.’ Of course, Trump isn’t any other defendant; he’s a candidate for president who is entitled to some latitude in making his case, such as it is, to voters. But neither the 1st Amendment nor Trump’s status as a candidate gives him a license to intimidate witnesses or bully court personnel…
“Chutkan wouldn’t have had to balance Trump’s free-speech rights and the integrity of the judicial system if Trump had kept a civil tongue in his head and refrained from making outrageous accusations. But then he wouldn’t have been Donald Trump.”
Editorial Board, Los Angeles Times
Some argue, “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. vs. 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…
“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 1st Amendment protects a right to criticize government officials, even harshly.”
Erwin Chemerinsky, Los Angeles Times
