Trump’s Free Speech Win Puts Gag Order on Hold, Temporarily at Least, and Tees Up a Constitutional Clash

Judicial efforts to impose prior restraints on the former president are facing First Amendment headwinds on several fronts.

Brendan McDermid-Pool/Getty Images
President Trump at the New York Supreme Court at New York, New York, on November 6, 2023. Brendan McDermid-Pool/Getty Images

The temporary staying of a gag order against President Trump marks, in his hometown of New York, the first victory for his position that such prior restraints are crosswise with the Constitution.

The order came from Associate Justice David Friedman of the Appellate Division, First Department. That tribunal supervises Judge Arthur Engoron, who presides over Mr. Trump’s fraud trial and issued the gag order and has twice imposed sanctions for its violation.

Mr. Trump’s spleen has been directed not just at Judge Engoron, but at his law clerk, Allison Greenfield. The former president’s ire appears to have been first aroused by an image of Ms. Greenfield with Senator Schumer, a longtime antagonist of Mr. Trump. He called her, without evidence, the lawmaker’s “girlfriend.” 

The former president has also taken issue with Ms. Greenfield sitting next to Judge Engoron in court, and her practice of passing him notes during proceedings. Once the gag order against Mr. Trump was stayed, he took to Truth Social to call her a  “Democrat Operative and Hack.”    

Judge Friedman’s ruling is brief, with its “disposition” amounting to one sentence, scrawled in a spidery cursive. It reasons that “considering the constitutional and statutory issues an interim stay is granted.” Mr. Trump’s applications for a stay called the gag order “unconstitutional.” 

Mr. Trump’s provisionally successful challenge took the form of what New York calls an “Article 78” petition, which replaced the common law writs of mandamus and prohibition. Those ancient clauses of petition are mechanisms whereby a higher court — like Judge Friedman’s — can intervene in the workings of a lower one.

For now, two of Judge Engoron’s gag orders — against Mr. Trump and against his attorneys — are suspended. So too is the $15,000 in fines that Mr. Trump has accrued for their violation. In justifying the imposition of those orders, Judge Engoron wrote that his “chambers have been inundated with hundreds of threatening phone calls, voicemails, emails, letters and packages.”

Attorney General James, who has already notched a victory in the case by persuading Judge Engoron to issue a pre-trial ruling finding that Mr. Trump’s business empire is “infected” by fraud, wrote to Judge Friedman that lifting the stay would put court staff  “at risk of harassment or harm.” She has also called a separate motion from Mr. Trump, asking for a mistrial, “frivolous.”

The fate of Judge Engoron’s gag orders will ultimately be taken up on November 27 by a fuller complement of the Appellate Division. It could eventually make its way to the Court of Appeals, New York’s highest judicial body. Another gag order, in Mr. Trump’s federal criminal case before Judge Tanya Chutkan, is before the riders of the District of Columbia Circuit of the Court of Appeals.

Both the state court judges in New York and the federal jurists at the District of Columbia will now be required to weigh whether judicial limitations on Mr. Trump’s communications are compatible with the First Amendment. Prior restraints on speech — of which a gag order is a sterling example —  are subjected to the highest constitutional scrutiny.

Mr. Trump maintains that the imposition of a gag order at this juncture is particularly inappropriate because he is also a leading candidate for office. He suggests that the context of a campaign means that any limitations on his speech doubles as a crackdown on political expression. He calls the gag order “ridiculous and unconstitutional.”

The former president has found some unexpected allies in his efforts to resist gag orders. The American Civil Liberties Union —  a liberal lodestar —  argues, in a brief to Judge Chutkan, that her order  “fails to provide the fair warning that the Constitution demands” because Mr. Trump “cannot possibly know what he is permitted to say, and what he is not.”

The dean of the University of California, Berkeley School of Law, Erwin Chemerinksy, concurs. In Los Angeles Times, Mr. Chemerinsky writes that while he “often wishes that Donald Trump would shut up, he has a constitutional right not to.” The constitutional sage explains that “unpleasant and offensive” communication” is “simply not a basis for restricting speech under the First Amendment.”  

The New York Sun

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