Opinion
“I’ll be the only politician in history” who “won’t be allowed to criticize people,” former President Donald Trump complained last month.
He was referring to the gag order issued by the judge who is overseeing the federal case that charges him with illegally conspiring to reverse the outcome of the 2020 presidential election.
While Trump’s claim was characteristically hyperbolic, the order does raise serious constitutional questions that are surprisingly unsettled. That much was clear on Monday, when the U.S. Court of Appeals for the D.C. Circuit considered Trump’s First Amendment objections to the speech restrictions that U.S. District Judge Tanya Chutkan imposed on Oct. 16.
Trump’s lawyers argue that the order was not justified by a “clear and present danger,” while the government says the relevant question is whether the extrajudicial statements covered by the order would create “a substantial likelihood of material prejudice to the proceedings.” The government’s position “doesn’t seem to give much balance at all to the First Amendment’s vigorous protection of political speech,” D.C. Circuit Judge Patricia Millett remarked.
Chutkan’s order bars Trump from making “any public statements” that “target” special counsel Jack Smith, his staff, court personnel or “any reasonably foreseeable witness or the substance of their testimony.” Although that language is ambiguous and potentially far-reaching, Chutkan said it left Trump free to defend himself and criticize the prosecution, a major issue in his current presidential campaign.
Trump portrays the prosecution as a legally baseless and blatantly corrupt attempt to help President Joe Biden by distracting and discrediting his opponent. Chutkan said Trump could continue to make that argument, provided he did not “vilify and implicitly encourage violence against public servants who are simply doing their jobs.”
Under Chutkan’s order, Trump can describe the prosecution as politically motivated, but he cannot call Smith “deranged” or refer to his staff as “thugs” and “political sleazebags.” Such insults, Chutkan worries, are apt to “encourage violence.”
That rationale, Trump’s lawyers argue, amounts to an unconstitutional “heckler’s veto,” constraining the candidate’s speech based on speculation about how his audience might react to it. As Millett noted, “inflammatory language” generally is protected by the First Amendment.
Millett mentioned a 1987 case in which the U.S. Court of Appeals for the 6th Circuit rejected a gag order imposed on Rep. Harold E. Ford Sr. (D-Tenn.), who argued that the Reagan administration’s corruption case against him was politically and racially motivated. “Calling someone racist is pretty inflammatory,” Millett noted.
The “clearly overbroad” order that the 6th Circuit vacated was more sweeping than the order against Trump. Among other things, it covered any “opinion of or discussion of the evidence and facts in the investigation or case,” statements about “any alleged motive the government may have had in filing the indictment,” and “any opinion” about “the merits of the case.”
Chutkan’s order nevertheless seems to cover some of the same territory. On its face, it precludes Trump from discussing what potential witnesses might say, which goes to the heart of the case against him.
As Trump’s lawyers note, those potential witnesses include estranged allies such as former Vice President Mike Pence and former Attorney General Bill Barr. If Trump is not allowed to “target” them, does that mean he cannot respond to their criticism of him, which is obviously relevant to his qualifications for office?
Still, concerns about witness intimidation cannot be dismissed out of hand. The government cites a pattern of harassment and threats inspired by Trump’s public attacks on people he believed had wronged him, including Pence and election workers in Georgia.
On Oct. 24, four days after Chutkan temporarily froze her gag order, Trump publicly wondered if Mark Meadows, his former chief of staff, would show himself to be a “coward” and “weakling” by agreeing to “lie” for the prosecution in exchange for immunity.
The question for the D.C. Circuit is whether Chutkan overstepped in trying to stop Trump from making comments like that.
About Jacob Sullum
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. During two decades in journalism, he has relentlessly skewered authoritarians of the left and the right, making the case for shrinking the realm of politics and expanding the realm of individual choice. Jacobs’ work appears here at AmmoLand News through a license with Creators Syndicate.
the First Amendment protects speech unless it is threatens another with physical violence. speech that you do not like IS protected. this “judge” is biased and should recuse herself, if not i see this being overturned upon appeal. everyone in d.c. is hates trump because he speaks his mind and is correct much of the time, correctly stating that d.c. is a swamp full of venomous creatures that need to be purged for us to return to the country we used to be. if the president has term limits, why not members of both houses of congress? political correctness has… Read more »
The judge is a hack in black, trying to legislate from the bench. A judge cannot legally issue her order, and Trump is duty bound to violate it, as an unjust law must be.
Yes, indeed, we need term limits, but the sleeze in DC will never pass such a bill.
THAT is the beauty of the 10th Amendment… “left up to the states and OR The People”. WE, The People can implement such a law. We just need highly skilled electricians to wire the heads and asses of WE, The People together so as to proceed with the good of the nation at the forefront of our actions.
They are NOT going to vote themselves OFF of the gravy train.
It’s almost too obvious now that our election system is compromised. However, no one ever questioned it to the extent DJT did. That scared the hell out of them.
Yes, but the fact that the “gravy train” is so recognized, it has now become a criminal element which allows for criminal charges to be levied against the players.
It appears in so many cases that we should be imposing term limits on the appointed federal judges as well.
After 26 years in law enforcement ,we DEFINTLY NEED TERM limits for judges and politicians and a mechanism that makes it easier to remove Judges who legislate from the bench instead of following the law.
Of one week.
Political speech is the most protected speech.
Speech talking about government officials so be highly protected.
The left likes to call people disparaging names, but don’t care for it much when the sentiments are returned. They like to compile lists of people they don’t like, but scream to high heaven when they’re put on a list. They see themselves as special, some how members of a chosen few. Yet they claim that a higher power that could actually do that choosing doesn’t exist.Just don’t try pointing out that all of that is irrational for that would be racist.
Especially when you can prove to them that the title you gave them actually fits!
A. With election fraud now a “legal” FACT due to the findings in a Georgia court the 2020 election results are in fact in question which means Trump cannot get charged with protesting the outcome of a fraudulent election. Fraud vituates everything. B. Why are the kangaroos interested in ‘protecting’ potential jurors? They’ve been shuffling the same juries from J6 trial to J6 trial. What’s to make us think they won’t just grab these same folks and have them do Trump’s trial as well? C. Concerned about violence of Trump’s followers? Well the violent ones at J6 are now proven… Read more »
So, now that we have video evidence that the elections were stolen and have had the proof for a long time, don’t you think we should have a different president taking office? I do! Don’t you think that people that were jailed for saying it was a stolen election should be released and paid back all the money they spent fighting the entrapment by our rouge tyrannist government? I do! Don’t you think that the judges that claimed the election was not stolen should be disbarred? I do! And since the release of the J-6 event, don’t you think some… Read more »
I think the word GALLOWS on the White House lawn would be appropriate for ALL that KNEW the fraud schemes yet continued to cover them up. The very same with the kangaroos in ALL courts across the country and to maintain this long line to the gallows until WE return to THE RULE OF LAW along with the respect and dignity it demands!
If I ever wind up in a group hanging, I just hope that I have the presence of mind to recall this guy’s line if applicable. “First time?”
https://youtu.be/hbEbD1Z_tNQ?si=e_StjOsj3eOfSCQC
I just watched a movie that was very popular called Hunger Games yesterday. I couldn’t believe the similarities of the movie and what is happening and might be happening in the near future. There was one line in the movie that captured me. It was,” If we burn, you burn”.
That would make a good mantra later on if needed.
I have not had the opportunity to watch HG, but you are not the only one I have known who has seen parallels between that show and our current situation.
Good one!
If you remember, during the armed J6 Rebellion inthe 1700’s the British did hang some of those J6 patriots.
Maybe it’s time for another rebellion like that of our early patriots
That’s right “drop em or chop em”, no waiting.
Absolutely no question about it, Yes.
“will absolutely hand for treason.” THAT might have happened in the GOOD OLE DAYS of this great nation, however, our men folk have since been neutered. Given far too many toys and financial gain to consider not wanting to sacrifice losing all our, “stuff” for the better good of the nation. Perhaps one day soon WE, The People will get to the point in looking around us and FINALLY deciding, “What the hell? You only live once, may as well go for the overall benefit of this GREAT NATION!” I can’t do all the much standing here by myself and… Read more »
Me going on hospice now and tethered to a 50 ft oxygen hose those will have to bring the fight to my front porch but I am ready. I can still hit center mass at 30 yards with a pistol and with my old trusty 223 a hundred yards if I am sitting down.
All it takes is to step up to the plate and it’s obvious that you know where that plate is! Okay that’s two of us, who else?
WHY do you think they did away with those first 13 words of the 2nd amendment back in the early 1900’s?? So that it would be one man against 1000.
They wanted to see if WE, The People were paying attention? As for the numbers? Those are just numbers. You start with the first one and keep going until you are finished. Others will follow. You may die, but you will be amongst heroes and legends and most likely be honored as one or both.
What’s your frequency kenneth? You’re on the wrong channel and in the wrong place. Throwing people in jail or fining them because they disagree with what a proven tyrannist Marxist controlled government says is wrong. The fact that the political cabal tells a lie and then backs it up with more leftist lies and tells the same fake story channel after channel does not make it true and people with common sense can see that. I won’t go into all the proven video fact of what happened when the election was stolen from President Trump but there is proof out… Read more »
BUT THEIR HERE TO SAVE US!!!
If you actually believe that the election was NOT stolen, you are void of reason, logic and common sense. There are WAY too many metrics that show it was stolen. Try the 90 mile long Trump train in Arizona for starters. Then look at the amount of followers Chairman Xiden had the day that Trump was allowed back on Twitter. 34 million. Trump had ZERO. Eight days later Trump had EIGHTY ONE MILLION. I could go on and on but most likely your cognitive dissonance will result in your rejection of the facts.
Duh? Apparently common sense isn’t one of your attributes. How about 2000 Mules. Of course you’ll say that was all made up. And usually a good thief doesn’t leave admissions of guilt lying around for someone to pick up. It was STOLEN. It is OBVIOUS to anyone with a BRAIN.
Right, the fact that mailmen were selling ballots on video, ballots found in ditches, windows being covered so others could not see what was happening behind the curtain, people told to leave because of a busted water pipe that never existed, people seen putting ballots in a truck and then individuals coming back out three hours later with video proof in Nevada, the mules as you mentioned, more people voting than there were registered voters in multiple states, NEVER HAPPENED, It’s all just a figment of our imagination and multiple channels have told us so along with judges claiming there… Read more »
Your comments wouldn’t be able to withstand a recount of ACTUAL BALLOTS. The mail in ballets are corrupted and thereby void due to the lack of “Chain of Evidence”, a quality control measure guaranteed We the People.
Look how they treat OUR 2nd amendment! What in God’s name makes anyone think they have any respect for the rest of The Bill of Rights?!
Most of them don’t believe in God therefore they don’t understand the power behind the “inherit rights endowed by God” and weill do anything in their power to combat that mere fact.
It also pains them when they finally realize that in order to deny God or to claim they don’t believe in God they must first KNOW God in order to deny or refuse to believe in Him. THAT it’s no different than putting on left-wing nut in a round room and tell them to go stand in the corner.
trumps statement was accurate ,so it is protected
There are ALOT of people with TDS. The derangement syndrome will probably be a Federally protected disability at some point, if liberals have their way. Having something live rent free like this in your mind unchecked for years and probably decades must be tormenting.
Get the help you need at 1-800-TDS-HELP
LOL, now that’s a good one.
STOP IT! We will be bombarded with another 20 years of commercials akin to the mesothelioma and Camp Lejune rhetoric.
I’ve said it here many tines, without Trump the democrats have nothing to run on.
Don’t you mean run over?
WHY is U.S. District Judge Tanya Chutkan not in shackles and charged with violation of 18 U.S. C., Ch 115 along with the many other violations of law that she has so openly performed in front of our very eyes?
We have the best Judges that money can buy!
Because we have devolved into a country run by psychopathic control freak PARASITES. That’s why.
Iibs are aIready encouraging vioIence by their tyrannicaI actions.
Already? That’s been a front line priority since they hijacked the Democrat party decades ago!
Happy Thanksgiving everyone!
Happy Thanksgiving MusicMan, Oldvet, and Ope!
Thank you. Same to you.
It is apparent that the Democrats learned nothing back in 1865
li·bel [ˈlīb(ə)l] NOUN LAWa published false statement that is damaging to a person’s reputation; a written defamation. Compare with slanderslander ˈslan-dər VERB slandered; slandering\ ˈslan-d(ə-)riŋ \ to utter slander against : defame NOUN the utterance of false charges or misrepresentations which defame and damage another’s reputationa false and defamatory oral statement about a personThen it is obvious that if these “Deranged” and obviously “Political Sleazebags” are STILL working and making any money and their “careers” have not been harmed, then Libel and Slander do NOT APPLY and then, by law they now have to include me and any other patriot to… Read more »
This whole Trump witch hunt is costing us, the tax payers, untold amounts of money. It is absolutely fucking ridiculous. Our political system is in a shambles, and is not going to get better without intervention.
I’m ready to hear the order, “CITIZENS, FALL IN! VETERANS IN FRONT CIVILIANS IN THE BACK!”
The certainly can’t sue him for liable because his statements can be proven to be correct by any psychologist in existence. THEY ARE WHAT HE CLAIMS. Exactly. To the TEE. If this isn’t politically motivated then I’m really Kal El.
This is true but they will try and nail him for, “calling them a word that hurt their feelings”!
Trump can’t call them sleaze bags because the truth hurts. Anyway, he might get sued my actual slease bags for maligning them.
It’s insane there are any Trump supporters left. He lost me when he said guns should be taken away first and due process comes second. He had his chance and he blew it. Time for someone more America-minded.
Just like anyone or anything, I don’t agree with all of it but there is one thing I do realize. Everything costs more, my money is worth less and we are being pushed into another Marxist/communist/socialist mode again because we have another demokkkrat in the white house that thinks they are going to be part of the ruling NWO they push. Things were better under President Trump than any President I have ever lived with not under like obiden, obummer, clinton, carter, etc. He even did better than Regan in my book. Trump may not be perfect; I don’t agree… Read more »
He also signed away a chunk of America’s independence with USMCA, let criminals out of prison because some reality TV star asked him to, never built the wall, didn’t drain the swamp, and gave us Fauci, a crushed economy, and an ineffective vaccine for a flu that even a mildly healthy person could shake off. You’re in a binary mode of thinking that’s not helping anyone. The “opposite” of Biden isn’t Trump because they’re both failures. We need other options and the most promising now is the man who showed the country that leadership means more freedom for the people,… Read more »
Oh, let’s elect a loser that wouldn’t have made it if Trump wouldn’t have backed him.
It’s people that want to keep the swamp that would vote for De Santimonius. If it wasn’t for Trump, the swamp rats never would have been revealed and brought out into the open.
Trump/Noem
2024
Slow your ponies and your left wing “binary” group think logic there Scooter…. Trump being the only person to ever campaign and run on his own dime on his own time, forgiving Ross Perot for backing out… Also not being an career or embedded politician gave us a list of what he was going to accomplish if elected, stood against all the naysayers in the Republican party, successfully and openly debated against all the Democrats AND HIS OWN PARTY MEMBERS while America watched it awe. Then when he did accept the nomination, which was a Made for Prime Time movie… Read more »
Then you were lost long before Trump even got into office because if you knew anything about the whole overall operation you would realize that he was Ill advised by some jackasses. He wasn’t going to sit around on his ass all damn day long pontificating about one issue in regards to the overall operation of the country. He is smart enough to understand that if he did something wrong the squeal of the people will circumvent that! We just have too many apathetic citizens that can’t get up off their dead ass to do anything quickly enough to PREVENT… Read more »