Former President Donald Trump is about to learn once again that the First Amendment, while sweeping in its protections of speech from government interference, isn’t absolute. Based on arguments at the Washington, D.C., Circuit Court of Appeals on Monday, it seems likely that the appellate court will at least partially reimpose a gag order against Trump in the federal election interference case. While the order would limit what Trump can say, it would allow others to speak the truth.
Last month, District Judge Tanya Chutkan imposed a limited gag order against the former president, which prohibited him from disparaging the court staff, the special prosecutor and his staff and likely future witnesses. The order was far narrower in scope than the one requested by prosecutors: Chutkan declined to include statements that Trump may make about Washington, the Justice Department in general, the federal government more broadly or the judge herself.
When Trump, the criminal defendant, and yes, the political candidate, speaks, he attempts to silence others.
Chutkan’s order struck a delicate balance between the First Amendment rights of a political candidate and the need to protect the administration of justice. As Chutkan noted, Trump’s “presidential candidacy does not give him carte blanche to vilify and implicitly encourage violence against public servants who are simply doing their job.”
Trump appealed the order, and the circuit court put it on hold while it considers the case. On Monday, a three-judge panel of appellate judges heard arguments about the gag order — and it didn’t go well for Trump. The judges appear very likely to uphold the order, while potentially limiting its scope.
Trump and his team focused on his speech rights and incorrectly asserted that, unlike every other person in this country, the former president possesses an “absolute freedom” to say what he wishes. This freedom, they argued, holds no matter how much he threatens court staff members, prosecutors or potential witnesses. The prosecution, understandably, focused on the need to protect the administration of justice broadly and those court employees, special counsel Jack Smith and his staff and possible witnesses.
Trump’s arguments, if accepted by the court, would essentially mean that a court would at least have to wait until there has been documented witness intimidation before imposing a gag order. Such a standard can’t be and isn’t the law. While we have never had a case exactly like this one, gag orders aren’t per se unconstitutional, and they are allowed when circumstances justify them, such as to prevent harassment of witnesses, prejudice of the jury or the publication of trade secrets or other confidential information.
While Trump and his supporters frame the gag order as silencing one man, this gag order would actually allow far more people to speak.
Trump is wrong in saying that there is only one side of the scale to consider.
It is true that we have never seen a gag order like the one in this case. But we have never elected a president who sought to undermine the peaceful transfer of power and, allegedly, engage in crimes to do so. We have never had a former president who called prosecutors a “team of thugs.” We have never had a former president-turned-criminal defendant with an apparent history of testing the line when it comes to witness tampering.
When Trump, the criminal defendant, and yes, the political candidate, speaks, he attempts to silence others. A limited gag order would still allow him to vigorously defend himself in the legal and political spheres, yet crucially it would protect those who are called to testify. Trump is entitled to speak, and the public has the right to listen. But in a criminal case, his speech can — and must — be balanced against the public’s right to the fair administration of justice, which includes the ability of witnesses to testify free of threats and intimidation. Gag orders should be narrowly tailored and imposed as a last resort, when they are basically the only way to allow the legal system to function fairly. Trump isn’t wrong in saying that when a gag order is placed on a political candidate, we need to tread carefully. Political speech stands at the apex of protected speech. And political speech targeted at government officials is just the type of speech the government would want to censor. But Trump is wrong in saying that there is only one side of the scale to consider. Our democracy depends on the quaint idea that the rule of law still exists. The criminal justice system will crater if bullies can hide behind the First Amendment and intimidate those who keep the system working — court staff members and prosecutors. Similarly, criminal trials will become farces if defendants can merely intimidate witnesses into silence. Limiting Trump’s speech is not just consistent with decades of judicial precedents. It is essential for this case to proceed in a timely and fair fashion. Only with a narrowly tailored gag order can Americans be confident that the eventual verdict, however the jury decides, will reflect the rule of law.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
