The denial of President Trump’s request for a rehearing of whether a gag order was lawfully imposed in his January 6 case could amount to another invitation for  Supreme Court intervention just as Mr. Trump’s grip on the GOP presidential nomination tightens. 

The United States Court of Appeals for the District of Columbia Circuit demurred from granting an en banc review of Mr. Trump’s argument that the gag order imposed on him by Judge Tanya Chutkan is unconstitutional. The decision means that if the 45th president wants the order overruled, the Nine will have to do it. 

The matter of the gag order, though, is one that is particularly bound up with Mr. Trump’s dual identities as a criminal defendant — in this case, for allegedly attempting to overturn the results of the 2020 presidential election — and as the frontrunner for the 2024 Republican nomination. His notching of victories in the Iowa caucus and the New Hampshire primary could lend greater gravity to his First Amendment arguments against the prior restraint on his speech. 

The D.C. Circuit, which leans to the left, does not appear convinced that Mr. Trump’s challenge to the gag order has much merit. The brief order denying the rehearing noted the “absence of a request by any member of the court for a vote,” meaning that not one of 11 riders felt compelled to review turning back Mr. Trump’s request. 

The panel that affirmed Judge Chutkan’s gag order — all three circuit riders were appointed by Democratic presidents — wrote that they “do not allow such an order lightly.” They acknowledged that “Mr. Trump is a former President and current candidate for the presidency, and there is a strong public interest in what he has to say.” Yet they added that “the rule of law means” that he “must stand trial in a courtroom under the same procedures that govern all other criminal defendants.” 

The gag order bars Mr. Trump from discussing potential witnesses or any lawyers involved in the case — and their families. The panel ruled, though, that he is “free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated.” 

Mr. Trump contends that the gag order is particularly egregious because it targets Mr. Biden’s “primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations.” Prior restraints, because they strangle speech before it is uttered, are presumptively unconstitutional.

That presumption — and it is a heavy one — can be overcome by a showing of, as the panel put it, a “significant and imminent risk to the fair and orderly adjudication of this criminal proceeding.” If he decides to appeal to the Supreme Court, Mr. Trump is likely to argue that his electoral success means that his political speech — whether on the campaign trail or on Truth Social — is worthy of the utmost protection.

Mr. Trump has attracted an unlikely ally in his effort to speak freely: the American Civil Liberties Union, which sued the 45th president more than 400 times during his time in office but filed an amicus brief on his behalf to Judge Chutkan. The organization takes the position that limiting Mr. Trump’s speech could chill First Amendment freedoms more broadly. 

The ACLU’s executive director, Anthony Romero, said in a statement that “as much as we disagreed with Donald Trump’s policies, everyone is entitled to the same First Amendment protection against gag orders that are too broad and too vague.” If Mr. Trump appeals, the group will have the opportunity to make that case to the Supreme Court.