Trump gag order is attack on free speech

 Jonathon Turley:

The imposition of a gag order on former President Donald Trump was overwhelmingly applauded by pundits and press alike. Journalists described the order from U.S. District Judge Tanya Chutkan as “narrow” and “limited.” Most of them lionized Chutkan as an “unflinching” and “no-nonsense” judge who would not tolerate Trump’s penchant for personal attacks and reckless rhetoric.

However, this order should concern everyone who values freedom of speech. While the odds may favor Chutkan on appeal, this order should be overturned as overbroad and dangerous.

For years, many of us have been criticized Trump for his personal attacks on judges and opponents alike. Undeterred, Trump has continued such inflammatory attacks on “deranged” Special Counsel Jack Smith and the “biased, Trump-hating Judge” Chutkan. Smith has pushed aggressively for a gag order, even though one of the major issues in Trump’s campaign is whether the Biden Administration has weaponized the criminal justice system against him and other Republicans.

This week, Chutkan issued a partial gag order and stressed that she will not allow Trump to conduct a “smear campaign” in which he seeks to “vilify and implicitly encourage violence against public servants who are simply doing their jobs.” She stressed that “no other criminal defendant would be allowed to do so, and I’m not going to allow it in this case.” Chutkan reflects this trend in stating categorically that these are the limits that must be imposed regardless of the defendant.

These orders come at a great cost — limiting both parties and counsels in raising objections to alleged abuses of the government. The First Amendment was written in the aftermath of such abuses, including the infamous prosecution of publisher John Peter Zenger 290 years ago in 1733.

Some polls show that a majority now believe the Trump prosecutions are “politically motivated.” Tens of millions oppose the prosecutions, and this will be the single most-discussed issue of the campaign. Yet, one candidate would be both the subject of this national debate and a gagged order barring participation in it.

Chutkan steadfastly refused to recognize that either this case or this defendant are far from typical. Her order bars Trump from making statements against Smith, his staff, court personnel, and potential witnesses. That last category could include one of Trump’s opponents in the presidential election, former Vice President Mike Pence.

If Chutkan had simply barred statements targeting court staff or jurors, there would be no controversy. But she has imposed a vaguely worded court order that could turn campaign speeches into criminal contempt.
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The courts remain divided on the standards for curtailing the free speech rights of a defendant. A closely analogous case is the corruption trial of Rep. Harold E. Ford Sr. (D–Tenn.). The district court barred Ford from making any “extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication” that included criticism of the motives of the government or basis, merits, or evidence of the prosecution.

The United States Court of Appeals for the Sixth Circuit rejected the gag order as overbroad and stressed that any such limits on free speech should be treated as “presumptively void and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial.”
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The gag order looks like an attempt to suppress Trump's ability to campaign for office.  It is little wonder then that he would oppose the order.