ACLU Files Brief Arguing Trump Gag Order Violates the First Amendment

The order, issued in an ongoing election interference case, restricts constitutionally-protected speech

October 25, 2023 11:24 am

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WASHINGTON – The American Civil Liberties Union today submitted a motion for leave to file an amicus brief arguing that an overly-broad gag order imposed on Donald J. Trump in an ongoing election interference case violates the First Amendment. Among the key arguments within the brief include:

  • The gag order is too vague in its ban on “targeting” the prosecutor (Special Counsel), potential witnesses, and the “substance of their testimony because it could be read to encompass mere identification of people or issues, whether or not such “targeting” is threatening or causes any harm.
  • The gag order is too broad, as it covers the Special Counsel (who is a public official) and the “substance” of any witnesses’ testimony, which will almost certainly include issues that are highly relevant to the 2024 presidential campaign.
  • The public has a right to hear speech from the defendant, especially as it affects our ability to hold fair and free elections.
  • The First Amendment provides no license to engage in unlawful speech, including incitement, threats, or solicitation of criminal activity.
  • However, the gag order currently in place is insufficiently justified since it has not shown a serious threat that the speech it prohibits will threaten the administration of justice.

The ACLU has filed 400 legal actions against former President Trump’s administration. Today, the organization calls on the court to narrow its order to prevent infringing upon the First Amendment right to free speech.

“No modern-day president did more damage to civil liberties and civil rights than President Trump, but if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced,” said Anthony D. Romero, executive director of the ACLU. “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.”

A district judge placed the gag order on Trump on Oct. 16, barring him from making public statements that “target” the Special Counsel, court staff, defense attorneys, and potential witnesses and the “substance of their testimony” in a criminal case that accuses him of trying to overturn the 2020 election.

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