Examining the First Amendment Boundaries: Trump's High-Stakes Hearing on the Constitutionality of the Gag Order
President Trump challenges gag order's constitutionality, testing the limits of his First Amendment rights at a high-stakes hearing in DC Circuit Court
Former President Donald Trump will challenge the constitutionality of a gag order imposed on him in his federal election subversion criminal case when he appears before a Washington, DC, appeals court on Monday. This crucial hearing at the US DC Circuit Court of Appeals marks Trump's latest attempt to overturn the gag order issued by a federal judge in the previous month. Trump argues that lifting the order is crucial for him to defend himself outside the courtroom as he pursues a second term in the White House campaign.
District Judge Tanya Chutkan has issued a gag order that limits President Trump's ability to publicly criticize court personnel, potential witnesses, special counsel Jack Smith, and his team. Prosecutors claim that these attacks could potentially put individuals associated with the case at risk. The appeals court has currently put the gag order on hold while President Trump continues to challenge it.
"The Gag Order infringes upon President Trump's fundamental First Amendment rights, disregarding the rights of his audience, the American public, to receive and hear his speech," stated Trump's attorneys to the appeals court earlier this month. Legal experts, including Catherine Ross, a professor at the George Washington University Law School, have questioned the validity of Trump's argument and consider his appeal to be without merit.
Ross stated that the integrity of the judicial process and ensuring a fair trial sometimes requires First Amendment rights to give way. He further emphasized that restricting the rights of criminal defendants is a common occurrence and, in the present context, it is crucial to prioritize his status as a criminal defendant over his candidacy for president.
This is the second time within a week that Trump has appealed against a gag order. Previously, the former president was subjected to a gag order in the $250 million civil fraud case in New York state. The judge presiding over the case prohibited Trump and his legal team from making any statements concerning court personnel due to security concerns. However, on Thursday, an appeals court judge in the state temporarily lifted the gag order, citing the constitutional rights in question as a basis for siding, at least for now, with the former president.
DERRY, NEW HAMPSHIRE - OCTOBER 23: Former President Donald Trump, the Republican presidential candidate, addressed attendees during a campaign event on October 23, 2023 in Derry, New Hampshire. Trump, having completed the necessary formalities, filed for the first-in-the-nation primary on Monday at the New Hampshire State House. (Photo by Scott Eisen/Getty Images)
The judge has temporarily lifted the gag order in Trump's civil fraud trial. Both parties in Smith's case have the choice to appeal the court's decision either to a panel consisting of all judges on the DC Circuit or directly to the Supreme Court.
The DC Circuit, which has heard numerous cases related to Trump, is now handling an appeal on a gag order. The three-judge panel assigned to the case includes two judges, Circuit Judges Patricia Millett and Cornelia Pillard, who have previously ruled against Trump. They were appointed by former President Barack Obama. The third judge on the panel, Circuit Judge Brad Garcia, was appointed by President Joe Biden and is new to the bench, having not yet heard a Trump-related case.
First Amendment scrutiny
Smith has filed four accusations against Trump, claiming that he attempted to retain his position after the 2020 election defeat. Trump, the previous president, has entered a plea of not guilty, and Chutkan has set the trial date for early March.
Trump's attorneys are challenging the constitutionality of the gag order, arguing that it infringes on several of his rights, particularly those protected by the First Amendment. The legal team has requested that the circuit judges assess whether Chutkan's limitations on speech impede the right of "Trump and millions of Americans" to participate in and listen to essential political discourse during a presidential campaign.
The panel will assess whether the gag order is "unconstitutionally vague," as Trump's lawyers contend that it lacks the "clear and precise language" required to withstand legal scrutiny.
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In their court filing, Trump's lawyers argued that the Gag Order limits considerable amounts of essential political expression that does not present a credible risk to the fair administration of justice. They further contended that the Gag Order is entirely unconstitutional due to its basis on the heckler's veto theory, therefore being excessively broad.
Trumps attempts to have Chutkan temporarily lift the gag order while waiting for his appeal to be resolved were unconvincing. The judge, in denying his request last month, stated that the orderly administration of justice sometimes takes precedence over participants' First Amendment rights in criminal proceedings.
On the other hand, prosecutors have consistently argued that Trump's verbal attacks against individuals connected to the case justify the speech restrictions. They asserted to the appeals court last week that Chutkan did not make an error in issuing the gag order and that Trump's recent attacks on people associated with the case, while the order was temporarily lifted, support the need to curtail his speech.
In a recent filing, Smith's team stated that no criminal case has ever granted a defendant the unrestricted ability to publicly try their case, harm the prosecutor and their family, and attack the character and integrity of specific witnesses.
They further noted that the defendant has recently resumed targeting the Special Counsel's family despite the administrative stay on the order.
During a campaign rally held earlier this month, Trump restated multiple criticisms towards Smith, including making references to the special counsel's family. The ex-president labeled Smith as "deranged" and a "prosecutor who harbors strong animosity towards Trump," while further asserting that "his wife and family hold a greater disdain towards me than he does."
Regarding Smith and his family's supposed hostility towards Trump, the ex-president claimed that Smith's animosity levels are at "about 10," while his family's levels are even higher, at "about 15 on a scale of 10."
Various prominent legal organizations, including the American Civil Liberties Union, have expressed apprehension about the gag order in question.
"The significance of the term target is crucial to the entirety of the order," according to a proposed court filing penned by the ACLU. "However, this significance presents an ambiguous aspect that falls short of offering the necessary fair warning as required by the Constitution, especially in cases such as this, where it pertains to a restriction on speech before it occurs."
Latest clash at the DC Circuit
The DC Circuit has consistently ruled against Trump in various cases, both during his presidency and afterwards. Trump has occasionally appealed these losses directly to the Supreme Court for further examination.
One notable instance occurred in 2021, when Trump's attempt to prevent the release of records from his White House tenure to the House select committee, responsible for investigating the January 6, 2021 assault on the US Capitol, was unsuccessful.
The Supreme Court dismissed Trump's appeal in a unanimous opinion written by Millett. The court stated that the events of the Capitol attack revealed the vulnerability of our democratic institutions and traditions, which we had previously assumed were secure. Furthermore, the court found no justification for preventing the government from handing over the materials.
The appeals court, including Judge Pillard, made decisions in two recent cases that were unfavorable to Trump in his ongoing legal battle with the Smiths. One ruling from last month affirmed the Justice Department's authority to charge January 6 rioters with obstruction, which could strengthen their case against Trump, as he faces similar charges in Smiths' case under the same federal statute.
The appeals court upheld a lower court order, ruling that Trump's defense attorney, Evan Corcoran, must provide testimony to the grand jury investigating classified documents discovered at Mar-a-Lago. The lower court made this decision after prosecutors from Smith's office presented sufficient evidence suggesting that Trump's interactions with Corcoran may be connected to a potential crime. Trump has pleaded not guilty to charges in the classified documents investigation.
