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ACLU Defends Trump Against Judge's Gag Order on Free Speech Grounds

By Vaidehi Mehta, Esq. | Last updated on

You may have heard that the ACLU recently went to bat for former president Donald Trump.

No, you probably don't need new glasses. You read that right.

Although the American Civil Liberties Union holds itself up to be nonpartisan and has supported conservative causes in the past (like the NRA), it's generally often considered to be a left-leaning organization and for the most part takes a pretty liberal stance that butts heads with Republicans. And for the four years of Trump's time in office, the ACLU was one of the biggest thorns in his side, filing 400 legal actions against his administration.

So what's the occasion for this surprising twist? It was a battle between the First Amendment and a gag order from a judge who finally got tired of Trump's badmouthing.

Judge Trumps the Former President

Trump and his legal team are juggling quite a lot of legal cases at once, which you can read more about in our blog summarizing the charges against him. One of those was a trial in D.C. over accusations that the former president had a hand in overturning the 2020 election after losing it. That case was presided over by U.S. District Judge Tanya Chutkan. In the wake of the proceedings, Trump posted on his social media platform about the federal attorney investigating the case, Special Counsel Jack Smith. Trump called the prosecutor a "thug," "Radical Right Lunatic," and a "Trump Hater," among other smears.

Maybe the ex-POTUS wasn't used to not getting his way, or maybe Judge Chutkan wasn't prepared for Trump being, well, Trump. His usual antics, which famously include making fun of people on social media, were not about to fly in her courtroom.

The judge issued, and later reinstated, an order barring Trump and his attorneys from personally targeting Smith and his team, as well as the court staff. Judge Chuktan said that she would not allow the former president to "launch a pretrial smear campaign" against people involved in the case.

What Is a 'Gag Order'?

Non-dissemination orders, known colloquially as "gag orders," are court orders that prohibit individuals from discussing or publicizing certain information related to a pending trial. Gag orders can be issued to anyone involved in the trial: not just the parties and their attorneys, but also any witnesses and even the news media. Gag orders can also be used to protect the integrity of the judicial process. A judge may issue a gag order to prevent the parties from discussing a pending decision with the media so that the judge can make the decision without being influenced by public opinion.

In jury trials, gag orders are useful to prevent prejudicial information from reaching potential jurors. For example, if a defendant has confessed to a crime but the confession has not yet been admitted into evidence, the judge might issue a gag order to prevent the confession from being publicized in the media. This is because the judge wants to ensure that the jurors are impartial and have not been influenced by any outside information.

Privacy is another reason a judge might issue a gag order, particularly in a case involving victims of crimes or civil offenses. For example, if a victim of sexual assault is testifying in a trial, the judge might issue a gag order to prevent the victim's name from being published in the media to protect the victim's privacy and avoid any potential retaliation from the defendant. Similarly, witnesses can be protected in the same way, which can be a big factor in their decision to testify.

The O.J. Simpson cases in the '90s involved concerns around gag orders. As you probably know, Simpson was charged with the murders of his ex-wife and her friend, Ronald Goldman, and went through a very publicized criminal trial. In the criminal case, lawyers from both sides talked to over a thousand different reporters. Family members of both O.J. and the victims also jumped in to give their side of the story. Two years later, the victims' families sued Simpson in a civil court for wrongful death, a trial that also involved a jury. The judge presiding over the civil trial sought to prevent the media frenzy that marked the earlier criminal case, and issued a gag order forbidding all parties, attorneys, and witnesses to talk about the case for the duration of the trial.

Gag orders do come with a cost. Critics of gag orders argue that they violate the First Amendment's right to free speech. Courts must balance First Amendment interests to justify gag orders under certain circumstances. For example, the Supreme Court has held that gag orders are permissible when necessary to protect the fair trial rights of the defendant. This is because the defendant has a right to a trial by an impartial jury (under the Sixth Amendment), and prejudicial information in the media can make it difficult to find impartial jurors.

From Trump's Throwdown to a Free Speech Showdown

Of course, Trump's legal team promptly appealed the order to the D.C. Circuit Court of Appeals. Meanwhile, to no one's surprise, the defendant continued to post on social media in violation of the gag order, calling Smith "deranged," calling for the judge to be "RECUSED," and accusing them of taking away his "FIRST AMENDMENT RIGHTS" (the man loves his all-caps). But to many's surprise, the ACLU joined in. The nonprofit group argued that the order did indeed violate Trump's First Amendment rights, as well as the public's right to hear what he has to say.

After stating their public support for him in this narrow case, the ACLU filed an amicus brief, also known as a "friend-of-the-court brief." This is a brief on the legal issues at stake that can be filed by someone who is not a party to a case but has an interest in the outcome. Amicus briefs are used to provide the court with additional information or arguments that may not have been raised by the parties themselves. These kinds of briefs are organizations like the ACLU's bread and butter, and often how they make an impact in shaping the outcome of the civil liberties that they make it their mission to protect.

Trump's attorneys and the ACLU's legal argument is that the gag order against him violates the First Amendment. Although we mentioned that SCOTUS has held that gag orders are often permissible, it has also held that these orders must be "narrowly tailored" to serve the government's interest in protecting the fair trial rights of the defendant. This means that the gag order must be the least restrictive means of doing so. For example, a gag order is probably unconstitutional if it prohibits all discussion of a case with the media, even if the discussion does not compromise the case or risk being unfair to the defendant. The ACLU argues that the gag order against Trump is not narrowly tailored enough.

The ACLU also points out that the order is too vague to be constitutional. The order prohibits Trump from “making any public statements or directing others to make any public statements, that target" Special Counsel, the defense, or court staff. The ACLU argues the court's use of the word "target" is too unclear. Its point is that Trump, reading the order, cannot possibly know what he is or isn't allowed to say, and what he is not, since "target" is an "inherently vague term." It's asking the court to at least rephrase the order and clarify its meaning if it insists on upholding the order.

What to Expect

Of course, the ACLU knew that its supporters might be taken aback to see the nonprofit coming to Trump's defense. As such, its brief includes a tactful criticism of the former president: "Much that he has said has been patently false and has caused great harm to countless individuals, as well as to the Republic itself." It also characterizes Trump's 2020 actions as "grave wrongdoing in contempt of the peaceful transition of power."

But as much as the ACLU may be, well, gagging, through their defense of the former president, you have to hand it to them for not having a double standard in this case. Will it finally make amends with Trump after so many years of fighting against him? Maybe, but the outcome of this gag order issue has broader effects: it may finally make the former president have to shut up. Considering he's got a lot of different legal cases pending against him, that may be in his best interest, anyway.

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