A federal judge’s gag order against Trump could be satisfying. But it is not constitutional

President Donald Trump held a campaign event in Adel, Iowa on October 16, 2023.  (AP Photo/Charlie Neibergall)

(Charlie Neibergall/Associated Press)

A federal judge’s gag order against Trump could be satisfying. But it is not constitutional

Opinion piece, Elections 2024

Erwin Chemerinsky

Oct. 17, 2023

While I often wish Donald Trump would shut up, he has a constitutional right not to. A federal judge went too far in restricting his free speech on Monday when she imposed a gag order on the former president.

U.S. District Judge Tanya Chutkan, who presides over Washington


The prosecution of Trump for his role in the January 6, 2021 insurrection ordered him to refrain from rhetoric targeting prosecutors and court staff, and from inflammatory statements about potential witnesses.

Chutkan issued the order in response to a motion by Special Prosecutor Jack Smith. Trump has said on social media that Smith is crazy, that the judge is a radical Obama hack and that the justice system is rigged. He has also attacked potential witnesses such as former Vice President Mike Pence.

It’s not about whether I like Trump’s language, Chutkan said as she announced her decision from the bench. This is about language that poses a danger to the administration of justice.’ She added that Trump’s presidential candidacy does not give him carte blanche to threaten officials. The judge said First Amendment protections give way to the administration of justice and witness protection.

I certainly understand Chutkan’s desire to limit such speech, and this is clearly a unique case with no similar precedents. But basic principles of the First Amendment cast serious doubt on the judge’s order.

The Supreme Court has long held that injunctions prohibiting expression of opinion constitute prior restraint and are only permitted in extraordinary and compelling circumstances. In New York Times Co. vs. United States (1971), for example, the judges ruled that the courts could not constitutionally prohibit newspapers from publishing the Pentagon Papers, a history of America’s involvement in the Vietnam War. The Supreme Court ruled that there is a strong presumption against orders that prevent expression.

Even more to the point, in Nebraska Press Assn. vs. Stuart (1976), the justices held that the courts can almost never prevent the press from reporting on criminal cases, even if the purpose is to protect the suspect’s right to a fair trial.

Although the Supreme Court has not considered a gag order on parties to a case and their attorneys, the same strong presumption should apply to such prior restrictions. What’s especially troubling about Chutkan’s order is that it appears primarily aimed at protecting prosecutors and judicial staff from Trump’s vitriol. The law makes clear that expression cannot be restricted to prevent government officials from being criticized or even defamed.

The Supreme Court has repeatedly ruled that the First Amendment protects the 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 uncomfortably sharp attacks on governments and officials.

Moreover, there is no reason to believe 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 prosecutors’ behavior. And given everything Trump has said and everything that has been said about the events of January 6, it is inconceivable that more speeches will do much more to bias future jurors.

Whether Chutkan’s order is constitutional insofar as it bars Trump from speaking about witnesses is a more difficult question. Trump already appears to be threatening potential witnesses. For example, the day after his arraignment in August, Trump posted on social media: If you come after me, I’ll come after you.

But it is important to note that the witnesses Trump has attacked are former senior officials like Pence and Atty. General William Barr. (Chutkan ruled that Trump can talk about Pence as a rival for the Republican presidential nominee, 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 there are strong reasons to protect criticism of Trump. what they did as government officials, even by Trump. Also, Chutkan could have issued a more limited order limited to speaking about witnesses, but he did not.

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 can hate what Trump says, but we must defend his right to say it.

Erwin Chemerinsky is a writer for Opinion and dean of the UC Berkeley School of Law. His latest book is Worse Than Nothing: The Dangerous Fallacy of Originalism.


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