Beware of Prior Restraint and Gag Orders

As the trials of President Trump gather, let the First Amendment cover everyone if it is to cover anyone.

AP/Jose Luis Magana
Special Counsel Jack Smith on June 9, 2023, at Washington. AP/Jose Luis Magana

Who is going to gag those who would have a gag order imposed on President Trump? That question nags after Special Counsel Jack Smith’s request that the 45th president be gagged from discussing the case in which he is a criminal defendant, and so far, has been a caustic commentator. Mr. Smith may be worried about tainting the jurors, but Mr. Trump is hardly the only voice aimed at the jury pool. How about Mr. Smith himself, the judge — and the press.

There is, after all, one First Amendment. If it doesn’t shelter Mr. Trump, why in the world should it protect Judge Chutkan, Mr. Smith, and the rest of us? It is true that gag orders are known to criminal law, but it is also true that as a “prior restraint” on speech, gags occupy constitutionally disfavored terrain. Plus, the way the Constitution lays it out is that the right to an “impartial jury” is for the “accused” to “enjoy.” In this case, it’s for Mr. Trump.

Mr. Smith’s fear that Mr. Trump could “prejudice the jury pool against the Government” could be overwrought. Mr. Smith’s effort to avoid witness intimidation is another matter. He looks to bar Mr. Trump from discussing the “identity, testimony, or credibility” of potential witnesses. If Mr. Trump is intimidating witnesses, though, why use merely the gag — why not charge him and meet the proof burden in court? 

It’s not our aim, in any event, to defend every — or any — jot of  Mr. Trump has said. We’ve already marked that we’re horrified at the kinds of things he’s been saying. It is our aim, though, to suggest that Mr. Trump’s is not the only voice that could taint or intimidate a jury. Judge Chutkan has already declared that the “people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution.” That’s a central question in this case.

We imagine that Judge Chutkan’s words could be prejudicial. Prosecutors poured their salt into the jury pool with their first press conference, and with nearly every public filing they make — including the warning that Mr. Trump could “precipitate violence.” That too could sway. Other prosecutors, particularly District Attorney Alvin Bragg, secured the offices they hold by running on Mr. Trump’s pre-trial guilt. What are their juries, chopped liver? 

When it comes to jury-pool-tainting, though, the press is in a league of its own. The Times, just to pick one Democratic paper, thinks nothing of editorializing, as it did in February 2021, that “Trump Is Guilty.” That’s precisely the burden that Mr. Smith is supposed to be charged with meeting. That essay was written during the 45th president’s second impeachment trial, where, for a second time, he was discovered, by the Senate, to be, in fact, “not guilty.” 

At the end of the day, our view is that Americans are a smart and courageous people. A people that can see, or read of, President Trump’s bluster and threats without falling over in a faint and who, in the quiet of the jury room, will be able to make up their minds on the facts. So our instinct would be to deny gag orders narrowly tailored to apply only to Mr. Trump. If he’s going to be gagged, let his adversaries be gagged. Or gag no one and let the jurors decide.


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