Below is my column in The Hill on the imposition of a gag order on former President Donald Trump by U.S. District Judge Tanya Chutkan. Despite my long-standing criticism of Trump’s personal attacks on judges and critics, this gag order should be curtailed or struck down on appeal. While the odds tend to favor the lower court in such orders, there is ample reason to object to the scope and language of the order. The ill-defined bar on criticizing the prosecution or witnesses (including one of Trump’s opponents in this election) raises serious free speech concerns. It is also unlikely to have any appreciable impact on the heated public debate over this and other prosecutions of the presidential candidate. Much of this campaign will focus on the alleged weaponization of the criminal justice system. While Trump is still allowed to criticize the case generally, the vague order cuts too deeply into his right to criticize the prosecutor, the judge, and witnesses in the case in this election.
Here is the column:
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 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 gag order barring full 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.
While appellate courts have largely ruled in favor of lower courts’ gag orders, there have long been constitutional concerns over these limits on not just the free speech rights of defendants but also their zealous representation by defense counsel.
It is not surprising that Smith dismisses such concerns. Smith has long adopted extreme legal positions that ignore constitutional values. This includes his prosecution of the former governor of Virginia, Robert McDonnell (R), which was reversed in a unanimous 8-0 decision by the Supreme Court in 2016.
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.”
There remains a division on the courts of what showing is needed, but there is little evidence of any true balancing in Chutkan’s decision. This and the other trials will remain the focus of heated debate in this campaign. Her order will only silence the voice of the man who many feel is the victim of politically motivated prosecutions. This order will do little to reduce the criticism or the coverage.
Ironically, it is a level of restraint that Judge Chutkan herself has failed to show in the past. For example, in sentencing a rioter in 2022, Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.”
She added that “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.”
That would seem to imply the guilt of an individual who was not even charged. Yet Chutkan has refused to recuse herself in now trying the very man she was referencing as responsible for the crimes of that day.
As has long been the case, many are turning a blind eye to the implications of this order. They cannot see beyond the name at the top of the caption page. But this order would allow any judge to effectively strip a political candidate of the ability to contest the merits and motivations involved in his own prosecution, including challenging the veracity of prosecutors or witnesses.
In some of these cases, there is ample reason for such criticism. While I have long said that the Mar-a-Lago prosecution by Smith is well-supported in both law and facts, other prosecutions currently ongoing are clearly politically motivated. The most obvious is the prosecution brought by Alvin Bragg in New York — a case that contorts existing law in an attempt to bag a political figure unpopular in his jurisdiction.
While the Chutkan gag order does not extend to the other cases, they constitute a daisy-chain of trials that will have Trump running between courts before the election. There is much to criticize in Smith’s second indictment, which will be tried before a judge who previously denounced Trump in a district where 95 percent of the voters opposed Trump.
After Chutkan ordered a trial just before Super Tuesday, she is now gagging only one candidate — the very candidate who is campaigning against the weaponization of the criminal justice system. You do not have to like or support Trump to recognize the serious problem inherent in such a gag order.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
This judge is a fascist! #BananaRepublic
I need to update the number of guilty pleas in the election interference case. It is now 3, count together with me 1, 2, 3 people that have plead guilty to crimes around the attempt to keep the looser commonly known as trump in office after loosing the election in 2020. I know it is a big number but I’m sure all of you trump supporters can count to 3. Most of you can even do it on one hand. Free speech, my hind end. Free speech ends when crimes have been committed. These are just the beginning, the rest will fall like dominoes.
Dear Biden supporter.
Innocent before proven guilty, I know these are really big words for you, but what they mean is “‘if you’re charged with a crime you’re innocent until you’re proven guilty in a court of law.
So tell all your friends, that way they won’t be so stupid.
Looser than what?
Innocent till PROVEN guilty Bob. You forget that?? Trump hasn’t been convicted yet.
Concur. But trump will be convinced of at least one felony. He’s a felonious type of guy.
Lawfare is Financial Warfare, the infinite resources of the state against an individuals life savings. Phony charges, plea deal, financial ruin in either case. Guilty NOT. Williis is a fascist doing the bidding of the fascist regime.
Do t do the crime if you can’t do the time.
You write like a third grader
Which particular species of ignoramus are you, Bob? Let me help you. A cardinal principle of our jurisprudence is that all suspects are to be considered innocent (by the law, if not by the court of public opinion) until proven guilty. So, where is the justice in muzzling an innocent man? And, by the way one who loses is termed a loser, not a “looser”, you imbecile.
In Georgia’s case
The professor is talking about Chutkan (Federal judge). Do try to stay on topic, please.
I enjoy reading various points of view when I get a few moments and often both sides of a debate make valid points. I don’t always agree but I try to give some consideration to the posts. It would be helpful to me (and perhaps others) if those who post as “anonymous” would put a small designation of which one you are. Perhaps a number or a letter? I find it difficult to keep track and thus I usually just scroll on by.
I’m so sick of SELECTIVE JUSTICE and LAWFARE which is the very definition of Communism. My dad came back from SERVING this country with PTSD. The left no doubt sleeps well knowing they won’t ever be charged except Clinesmith who got a mere hand slap even though he tried to undermine 75 million voters. Equal justice for all!!!!
Communism: a theory or system of social organization in which all property is owned by the community and each person contributes and receives according to their ability and needs.
So, no.
Well knock me off my feet. An opinion in the Los Angeles Times says that the Trump gag order is unconstitutional. What in the world is this world coming to.
Democrats Judges = 1
SCOTUS = FJB
Justice Clarence Thomas must be giddy, maybe even salivating as he sees Joe “high tech lyncher” Biden LLC, violating the First Amendment. Karma is here and she looks pissed. It only takes 5 Justices to drive the nails into Biden’s coffin, and 3 already have the hammer and nails. The Democrats did this to themselves and to our nation.
Lock him up!!!!
Supreme Court to Review Biden Administration Communications With Social Media
WASHINGTON—The Supreme Court is stepping into the debate over speech rights and misinformation online, agreeing Friday to review lower-court rulings barring White House aides and other officials from pressuring social-media platforms to take down content disfavored by the government.
The brief order, which put the lower-court decisions on hold until the Supreme Court rules on the issue, was unsigned, as is typical. The court’s three most-conservative justices dissented, warning that “government censorship of private speech” could result.
https://www.wsj.com/politics/policy/supreme-court-to-review-biden-administration-contacts-with-social-media-companies-5dbcc6ff
Professor Turley, I appreciate your dedication to free speech and your stalwart defence of the First Amendment. But I am APPALLED you have not taken the time to comment on what might just be, for ordinary Americans, the most consequential judicial attack on speech freedom in modern times; The October 18 seven month prison sentence of Douglass Mackey in the Eastern District Court of New York over memes he created during the 2016 presidential. The DoJ press release is here https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-sentenced-after-conviction-election . What is especially galling about both the conviction and the sentencing is that such satirical memes (some almost identical) were common during the 2016 election and split almost evenly between both hegemonic-gangster parties. I know you’re a busy man but really sir, another Trump focussed article essentially repeating what you’ve said a dozen times before in multiple articles? How about something fresh to which ordinary folks and directly relate (and fear). Anyone interested in supporting Mackey in his continuing fight – (presumably he will, or is already, appeal this) you can do so here https://www.givesendgo.com/douglassmackeycase .
Gag order on Trump
No Speaker
Nonsense from the President.
Speak, America! Find your Voice!
𝐓𝐫𝐮𝐦𝐩 𝐅𝐢𝐧𝐞𝐝 $𝟓,𝟎𝟎𝟎 𝐁𝐲 𝐍𝐞𝐰 𝐘𝐨𝐫𝐤 𝐉𝐮𝐝𝐠𝐞 𝐅𝐨𝐫 𝐕𝐢𝐨𝐥𝐚𝐭𝐢𝐧𝐠 𝐆𝐚𝐠 𝐎𝐫𝐝𝐞𝐫
The New York judge presiding over Donald Trump’s civil fraud trial fined the former US president $5,000 on Friday for not complying with a partial gag order and threatened him with possible jail time for future violations.
World News Agence France-Presse ~ October 21, 2023
https://www.ndtv.com/world-news/donald-trump-fined-5-000-by-new-york-judge-for-violating-gag-order-4501539
The post was put up long before the judges unconstitutional gag order. The Judge must have been sick the day they taught ex post facto in 1L
He was supposed to have taken it down after the gag order, and he did not.
The Judge does not have the power to censor a web site … or abridging the freedom of speech, or of the press;…
Truth Social cannot be bossed around by a judge. Truth Social has broken no law, but even if it had….the judge can only participate in the trial after an indictment.
That’s why this persecution is wrong.
He was already found liable for fraud. This trial is just to determine disgorgement. Jeez, if you’re going to complain about things, educate yourself about the facts of the case.
The “good” judge is a liberal hack who is doing the alt lefts bidding for them. Who was defrauded? Banks agreed to all the loans, banks were paid back all the loans, Trump paid HIGHER taxes due to many of his property evaluations. Cohen just testified yesterday that Trump DID NOT EVER direct him to inflate or undervalue his properties… so who was defrauded? Furthermore the “fair and impartial” judge called Trump “a bad guy” and said he should be in prison for Jan 6th, this despite the fact Trump has not even been charged with any crime related to Jan 6th never mind tried and convicted. You’re as big of alt left hack as the Judge…
Jonathan: When we say death threats against judges can have deadly consequences here is a case on point. A Maryland judge, Andrew Wilkinson, was just shot and killed in his driveway by a disgruntled litigant. Pedro Argote was upset that Wilkinson ruled against him a a child custody battle. Police say it was a “targeted attack”. Argote fled and has not been arrested. He is considered “armed and dangerous”.
Letitia James, Fani Willis, Jack Smith and Judge Chutkan have all received numerous death threats from supporters of DJT. Does anyone doubt one of the MAGA crazies might try to emulate Argote? That’s the reason Judge Chutkan put a gag order on DJT and why Judge Engoron, in the NY fraud case, my be compelled to revoke DJT’s bond. Anything less could threaten the lives of judges and prosecutors.
Now I know something about this. I lived in Mexico for over a year. It was not uncommon to pick up the newspaper in the morning to see that a judge or prosecutor had been shot dead in the street or inside his house. The tabloids thrived on displaying grizzly photos of the crime scene showing the dead body covered in blood. I don’t want to see that here in the US! That’s why I just can’t understand how you could defend DJT’s right to threaten judges and prosecutors as just another form of “free speech”!
So when Trump shoots Ergodon in his driveway get back to us. 1+1
No one had to talk about it, the victim took out the vengeance.
Does your brain function properly ? No, it does not.
Dennis all I can say is James Hodgkinsson Rene Boucher
BOOM!
Supreme court Justice Kavanaugh was nearly assassinated & Dems didn’t bat an eye.
Stephanie: please get your facts straight before posting. According to ABC News:
“Roske arrived to Kavanaugh’s home early on June 8 wearing black clothes and carrying a backpack, according to the affidavit. A Glock 17 pistol, two magazines, pepper spray, zip ties, a hammer, screwdriver, nail punch, crowbar, pistol light and duct tape were inside his bag, according to the affidavit.
He was arrested “without incident” after allegedly calling authorities to tell them he was suicidal and wanted to kill Kavanaugh, police have said.”
Roske turned himself in. He never touched or even saw Kavanaugh. This doesn’t even come close to “nearly assassinating” Kavanaugh.
But, like a good disciple, it’s all about attacking Democrats.
“. . . I just can’t understand how you could defend DJT’s right to threaten judges and prosecutors . . .”
That screed is an ages-old, sophist’s trick.
Cite a bunch of facts from a case that seems to be related to the issue you really want to focus on. Then assert, without proof or evidence, that the one is the other.
That is not reasoning. That is arbitrary association used, in this instance, to smear two people: Trump and JT.
it appears some Democrats do not appreciate the First Amendment, nor want to speak to the Press on their voting records regarding anything dealing with Israel. Imagine that!
U.S. Senator Jon Tester (D-MT) was caught on video fleeing a conservative reporter, asking him questions about his voting record on funding Hamas and boycotting Israel. The Democrat Senator, clearly a girthy man pushing 300 pounds, almost falls down flights of stairs, as he runs away from the questions by the reporter. Representative Ronny Jackson (R-TX) posted the video on X with his commentary. Senator Tester recently announced he plans to run again for the US Senate, but he is being opposed by a Republican, and is already in tight race. With videos like this one, he is sure to go down the path of Liz Cheney.
Don cha love the 1st Amendment and Freedom of the Press?
🤩
GOP Rep. ROASTS Hefty Democrat Senator After He Barrels Away From Reporters
“Senator Tester, why did you vote to allow mass boycotts of Israeli products by antisemitic activists? Senator Tester, why did you vote to allow American taxpayer dollars to fund Hamas, the terrorists who attacked Israel?”
https://trendingpoliticsnews.com/gop-rep-roasts-hefty-democrat-senator-after-he-barrels-away-from-reporters-mstef/
There’s not likely much doubt Senator Tester is a fat A-hole but being a coward is itself protected under the first amendment since it’s self expression. This story has nothing to do with a free press since the press has obviously reported on it. It does, however, have much to do with Mr lard but’s freedom NOT to “make” speech.
We see all sorts of prosecutions based on an individual’s opinion, but when it comes to money flowing to Joe Biden, we hear nothing.
Biden’s brother paid him $200K while seeking Mideast investor for hospital firm
Steven Nelson
WASHINGTON — President Biden received a $200,000 check in 2018 from his younger brother James on the same day that he received the same amount from a US hospital chain by promising to secure a Mideast investor, bank records obtained by Congress show.
“This summer, Joe Biden said: ‘Where’s the money?‘ Well, we found some,” House Oversight Committee Chairman James Comer (R-Ky.) said in a video posted Friday afternoon to X.
cont: https://nypost.com/2023/10/20/biden-bro-paid-him-200k-while-seeking-mideast-investor-for-hospital-firm/?utm_source=sailthru&utm_medium=email&utm_campaign=news_alert&utm_content=20231020?&utm_source=sailthru&lctg=64f25f6285efb3c7330a0cb9&utm_term=NYP%20-%20News%20Alerts
So the new big blockbuster from Comer is that James Biden had gotten a $200K loan from Joe and repaid it in 2018.
“received the same amount from a US hospital chain by promising to secure a Mideast investor,”
Loan payment for what?
“James Biden “procured the $600,000.00 in loans from Americore … based upon representations that his last name, “
“Within two weeks of that threat, $5.1 million flowed from CEFC China Energy to Biden-linked accounts ”
So many unaccounted for transactions where money seems to flow from political influence. Connecting the dots here and elsewhere is beginning to look more clear.
I don’t care too much about the money, but the wars, Middle East, Ukraine, Taiwan?, the economy, and the border. Americans will be paying for Biden recklessness for at least a few generations. The culture of death doesn’t care, and you fit in nicely with that culture.
“. . . James Biden had gotten a $200K loan from Joe and repaid it in 2018.”
Sure. Because one of the kleptocratic family members wrote on the check: “loan repayment.” Instead of, say: “bribe proceeds.”
“There’s a sucker born every minute.”
Aaaannd? What’s illegal about this?
University of California at Davis faculty member, a “transgender male” and vocal Critical Race Theory proponent, is being investigated for possible arrest due to making death threats against Jews and journalists. UC Davis President has issued a statement distancing the university from the faculty member
Trans, CRT, death to Jews…..we see a trend here.
UC-Davis Professor Threatens “Zionist Journalists” and Their Children
“One group of people we have easy access to in the US is all these zionist journalists who spread propaganda & misinformation. They have houses with addresses, kids in school. They can fear their bosses, but they should fear us more,” Decristo wrote.
https://thenewamerican.com/us/education/uc-davis-professor-threatens-zionist-journalists-and-their-children/
“Statement from Chancellor May on Comments Attributed to Faculty Member”
http://www.ucdavis.edu/news/statement-chancellor-may-comments-attributed-faculty-member
“𝐍𝐨 𝐖𝐨𝐧𝐝𝐞𝐫 𝐖𝐡𝐲 𝐇𝐢𝐭𝐥𝐞𝐫…”: 𝐂𝐢𝐭𝐢𝐛𝐚𝐧𝐤 𝐄𝐦𝐩𝐥𝐨𝐲𝐞𝐞 𝐅𝐢𝐫𝐞𝐝 𝐎𝐯𝐞𝐫 𝐀𝐧𝐭𝐢-𝐈𝐬𝐫𝐚𝐞𝐥 𝐏𝐨𝐬𝐭
Citigroup stated that they strongly condemn antisemitism and other hate speech.
World News Edited by NDTV News Desk ~ October 20, 2023
https://www.ndtv.com/world-news/citi-bank-fires-employee-over-antisemitic-comment-no-wonder-why-hitler-wanted-to-get-rid-of-all-of-them-4498668
𝐈𝐧𝐝𝐢𝐚𝐧-𝐎𝐫𝐢𝐠𝐢𝐧 𝐃𝐨𝐜𝐭𝐨𝐫 𝐈𝐧 𝐁𝐚𝐡𝐫𝐚𝐢𝐧 𝐅𝐢𝐫𝐞𝐝 𝐎𝐯𝐞𝐫 𝐀𝐧𝐭𝐢-𝐏𝐚𝐥𝐞𝐬𝐭𝐢𝐧𝐞 𝐓𝐰𝐞𝐞𝐭𝐬
Dr Sunil Rao has issued an apology acknowledging that his remarks were insensitive.
Diaspora Edited by Abhimanyu Kulkarni ~ October 20, 2023
https://www.ndtv.com/indians-abroad/israel-hamas-war-indian-origin-doctor-in-bahrain-fired-over-anti-palestine-tweets-4499485
Almost every day there are stories in the news that contradict Turley’s column. In fact, this pattern is so common it gets funnier all the time.
Today, Turley would have us believe the gag order on Trump is somehow unnecessary. Presumably because Trump is just a ‘harmless blowhard’ who means to harm to anyone.
But no sooner does Turley write this column, than Judge Engoron admonishes Trump for threatening the judge’s law clerk in a social media post. And yesterday Trump was cocky enough to post the home address of New York’s Attorney General, Letitia James.
Is Turley denying Trump’s efforts to intimidate court staffers? Is Turley so dumb he doesn’t understand the violence Trump wants to unleash? One should note that Turley grew up in Chicago where intimidation tactics are not an unknown practice.
Today Congressman Jim Jordan lost his third attempt at Speaker by the widest margin yet. In the aftermath, news reports continually referred to intimidation tactics used by Jordan supporters against Republican holdouts.
It appears that most of those holdouts were deluged by threatening phone calls by Jordan supporters. And those holdouts were very vocal about the threats they received. What’s more, Sean Hannity, of Fox News, had stoked those threats by waging a strong-arm campaign on Jordan’s behalf.
Just before leaving office, Donald Trump awarded Jim Jordan the Medal of Freedom for being a loyal stooge. And everyone understood the medal was awarded for that reason. So one can safely assume that all those threats made on Jordan’s behalf were coming from Trumpers. ..Thank God the effort failed..!
Svelaz, how do you come up with so many sock puppets?
LOL!!!!
Nerd, how funny you should ask. What happened to ‘Tom’? Was he outed too soon as your intended main man?
And don’t hold your breath for SCOTUS to chime in. The more this SCOTUS sits on the bench, the more our rights are slowly whittled away by incompetent, biased activists on the bench.
Democratic billionaire: Trump foreign record ‘pretty incredible’ in hindsight
“So much of the work that happened in that administration turns out to have been right. And that’s what’s so frustrating for me,” he said. “The work on the border wall, we didn’t like the messenger, so we killed the message. Turned out it was right.”
https://justthenews.com/politics-policy/democratic-billionaire-trump-foreign-record-pretty-incredible-hindsight
Test.
Jordan is out as a nominee for House Speaker, lost by a large margin. Good.
How sad that you use the internet and this website as your “friend”, your need for attention and otherwise empty life. Should have married, had kids, raised a family and been friendly to others. In order to have friends one has to be friendly.
Trump has filed a motion to stay Judge Chutkan’s gag order until his appeal is heard.
Trump’s gag order in the federal Jan. 6 case has been stayed pending appeal, per an order from Judge Chutkan.
Trump has already been fined for violating Engoron’s gag order. $5,000 not a big deal, but they will increase in severity and more likely jail time.
Turley is wrong – there is absolutely no basis for any judge ever to constrain the free speech rights of anyone OUTSIDE the courtroom.
If someones actual speech is illegal – such as actual incitement to right or child porn they can be arrested for that.
Which would STILL have nothing to do with the court and the trial immediately before them.
The power of courts to constrain private citzens who have not yet been convicted of anything is and should be ZERO.
This is not a Trump issue, this is a Judicial overreach issue.
Courts are the government – just as the executive branch or the congress can not restrict free speech, nor can a judge.
Right on Brother (or Sister 😊). Since when is prior restraint legitimate outside of sentencing burdens placed on a convicted defendant (and even then I think there is doubt as its validity re the 1st).