United States v. Trump, No. 23-cr-257-TSC (D. D.C.) Brief Amici Curiae Of The American Civil Liberties Union & The American Civil Liberties Union Of The District Of Columbia In Aid Of The Court’s Re-Evaluation Of Its Gag Order. Submitted October 25, 2023.

The American Civil Liberties Union (ACLU) with its District of Columbia constituent, has submitted an amicus brief in the ongoing federal criminal case against former President Donald J. Trump, expressing its view that a gag order operating only against defendant Trump is deficient in ways that may violate the First Amendment. If the court is to persist in utilizing a gag order, the ACLU submits, the order as it stands must be revised to be specific, precise, and narrowly tailored to its aim, which is the fair administration of justice, not the silencing of Trump.

The ACLU offers to the court the ACLU’s vies that defendant Trump is, in essence, a no-good liar and ne’er-do-well, but by virtue of being criminally charged Trump has not forfeited First Amendment speech guarantees, nor should the public be denied their right to hear what Trump has to say.

When a court imposes an order limiting the speech of a party to a criminal proceeding, the court must do so in a way that is “precisely defined and narrowly tailored to protect the impartial administration of justice.” Amicus Brief, p. 1.

Orders limiting speech during pending proceedings are made to ensure the fairness of the proceedings, not to punish the accused.

The ACLU argues that the court’s order precluding public statements that “target” counsel or witnesses or testimony is too vague and ambiguous to permit a reasonable person to understand what is forbidden, and thus operates as a prior restraint of speech in violation of the First Amendment.

The ACLU’s amicus submission proffers a concise overview of the law respecting gag orders for the court’s consideration, noting that the great public interest i this case makes it all the more important for the court to hew carefully to the most stringent First Amendment standard in imposing any restraint on the speech of a declared candidate in the 2024 presidential election.

Whether one looks with approval or not on the defendant candidate, the ACLU submits, he cannot be deprived of all means of communicating opposition to his political enemies’ assertions.

Public speech will not, of itself, render a trial unfair, the ACLU submits.

Amicus refines its argument by observing that precluding public comment on witness testimony is impossibly overbroad, where such potential testimony, undefinable in advance, may relate to the 2024 presidential campaign. The ACLU urges that the court consider how any public statement would impair the fairness of the trial.

As a practical matter, where the public at large is incessantly and passionately vocal about the defendant and candidate, its is unseemly at best to forbid the defendant and candidate himself from speaking.

Moreover, the ACLU offers, impairing public discussion of special counsel’s activities undermines the ability of the public to fully and fairly understand and to formulate informed comment on the proceedings. Exempting public officials from the order could remedy this threat to core First Amendment protections.

Additionally, the court cannot unduly constrain defendant for fear that defendant’s speech might inspire violence. This is particularly so where threats and incitement do not enjoy First Amendment protections, making the order superfluous if that is the court’s aim.

The ACLU notes that while the court is concerned with the impartial administration of justice, the matter before the court may be the most talked about case in history. With voluminous information already public, the capacity to limit information available to potential jurors may be significantly impaired. If an order would be ineffective in that regard, the court might consider that protection of the potency of the court’s orders is in itself a component of the impartial administration of justice.

Should the court conclude that a gag order is in fact a judicial necessity, the ACLU concludes, the court is urged to narrow and to refine and to explain the provisions of an amended and modified order.

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