The Department of Justice (DOJ) has requested that Judge Tanya Chutkan reinstate her previous gag order on ex-President Donald Trump, asserting that this order does not infringe upon his First Amendment rights to free speech.
On October 20, Judge Chutkan temporarily halted the enforcement of her order as it awaited further review. This initial directive faced backlash from various quarters, including the American Civil Liberties Union (ACLU), for imposing excessively broad limitations on Trump’s ability to express himself. Both the ACLU and Trump’s legal team contended that the order was impermissibly vague, as it barred Trump from targeting individuals connected to the ongoing case.
Molly Gaston, a DOJ lawyer and Special Counsel Jack Smith’s team member, countered these arguments in her October 25 response. She supported Judge Chutkan’s stance, emphasizing that criminal defendants do not possess unlimited First Amendment rights. Gaston highlighted that the court’s order was narrowly tailored, striking a balance between protecting the defendant’s First Amendment rights and ensuring the integrity of the legal proceedings. This included safeguarding trial participants from potential intimidation, harassment, or threats.
She underscored the necessity of these restrictions, pointing to Trump’s history of using provocative language to single out individuals, which could intimidate witnesses and target attorneys, public servants, and court staff. “These narrow restrictions were needed, the Court found, because the defendant has a demonstrated history of using inflammatory language to target certain individuals in a way that “pose[s] a significant and immediate risk.”
Trump’s lawyers, John Lauro and Todd Blanche argued in their October 20 motion that the prosecution failed to demonstrate that Trump’s statements had actually made witnesses feel threatened or harassed. They insisted that any prior restraint on speech must be based on more than mere speculation, requiring a clear and present danger to a vital government interest.
Gaston, however, argued that waiting for harassment or violence to occur before taking action was an ineffective strategy and not mandated by the First Amendment. She asserted that the court has the authority and the obligation to prevent trial participants from making public statements that could substantially prejudice the proceedings.
The debate over free speech has intensified in light of Trump’s statements and the response from the Biden administration. The situation is particularly unique as Trump’s speech is being restricted in a case brought forth by his likely main competitor in the upcoming presidential election.
Trump’s legal team argued that allowing the prosecution to silence a leading presidential candidate whose views pose a political threat to the incumbent president would be a violation of free speech principles. They emphasized the importance of preserving freedom of speech, even in the face of political opposition.
Gaston responded by accusing Trump’s attorneys of misrepresenting legal precedents and clarified that Trump is still free to comment on President Joe Biden and the case within certain limits. She referred to Judge Chutkan’s clarification that the gag order does not prohibit Trump from criticizing the government, asserting his innocence, claiming political motivation behind his prosecution, or criticizing the political stances of his rivals.
Judge Chutkan has given Trump’s team until October 28 to reply to the DOJ’s request to reinstate the gag order.