A federal judge’s gag order against Trump may be satisfying. But it isn’t constitutional
I certainly understand Chutkan’s desire to limit such speech, and this is obviously a unique case with no similar precedents. But basic 1st Amendment principles cast serious doubt on the judge’s order.
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lthough I often wish that Donald Trump would shut up, he has a constitutional right not to. A federal judge went too far in restricting his free expression Monday when she imposed a gag order on the former president.
U.S. District Judge Tanya Chutkan, who is presiding over the Washington prosecution of Trump for his role in the Jan. 6, 2021, insurrection, ordered him to refrain from rhetoric targeting prosecutors and court personnel as well as inflammatory statements about likely witnesses.
Chutkan issued the order in response to a motion from special counsel Jack Smith. Trump has said on social media that Smith is “deranged,” that the judge is “a radical Obama hack” and that the court system is “rigged.” He has also attacked potential witnesses such as former Vice President Mike Pence.
“This is not about whether I like the language Mr. Trump uses,” Chutkan said in announcing her decision from the bench. “This is about language that presents a danger to the administration of justice.” She added that Trump’s presidential candidacy “does not give him carte blanche” to threaten public servants. The judge said that “1st Amendment protections yield to the administration of justice and to the protection of witnesses.”
I certainly understand Chutkan’s desire to limit such speech, and this is obviously a unique case with no similar precedents. But basic 1st Amendment principles cast serious doubt on the judge’s order.
The Supreme Court has long held that court orders prohibiting speech constitute “prior restraint” and are allowed only in extraordinary and compelling circumstances. In New York Times Co. vs. United States (1971), for example, the justices held that the courts could not constitutionally enjoin newspapers from publishing the Pentagon Papers, a history of America’s involvement in the Vietnam War. The Supreme Court held that there is a strong presumption against orders preventing speech.
Even more to the point, in Nebraska Press Assn. vs. Stuart (1976), the justices held that the courts can almost never keep the press from reporting on criminal cases, even when the goal is to protect a defendant’s right to a fair trial.
Although the Supreme Court hasn’t considered gag orders on parties to a case and their lawyers, the same strong presumption should apply against such prior restraints. What is particularly troubling about Chutkan’s order is that it seems primarily concerned with protecting prosecutors and court personnel from Trump’s vitriol. The law is clear that speech can’t be restricted to prevent government officials from being criticized or even vilified...
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This is the guy that wrote this article.
Erwin Chemerinsky (born May 14, 1953) is an American legal scholar known for his studies of constitutional law and federal civil procedure. Since 2017,
Chemerinsky has been the dean of the UC Berkeley School of Law. Previously, he also served as the inaugural dean of the University of California, Irvine School of Law from 2008 to 2017.[1][2]
Chemerinsky was named a fellow of the American Academy of Arts and Sciences in 2016.
The National Jurist magazine named him the most influential person in legal education in the United States in 2017.[3] In 2021 Chemerinsky was named President-elect of the Association of American Law Schools.
Early life and education
Chemerinsky was born in 1953 in Chicago, Illinois. He grew up in a working-class Jewish family in the South Side of Chicago and attended the University of Chicago Laboratory Schools for high school.[4] He studied communications at Northwestern University, where he competed on the debate team.
He graduated in 1975 with a Bachelor of Science, summa cum laude. Chemerinsky then attended Harvard Law School, where he was a member of the Harvard Legal Aid Bureau. He graduated with a Juris Doctor, cum laude, in 1978.
Professional career
After law school, Chemerinsky worked as an honors attorney in the U.S. Department of Justice's Civil Division from 1978 to 1979, then entered private practice at the Washington, D.C., law firm Dobrovir, Oakes & Gebhardt.[5] In 1980, Chemerinsky was hired as an assistant professor of law at DePaul University College of Law. He moved to the Gould School of Law at the University of Southern California (USC) in 1983. Chemerinsky taught at USC from 1983 to 2004, then joined the faculty of Duke University School of Law.
I
n 2008, Chemerinsky was named the inaugural dean of the newly established University of California, Irvine School of Law. In 2017, he became dean of the UC Berkeley School of Law, where he is also the Jesse H. Choper Distinguished Professor of Law.[6]
Chemerinsky has published eleven books (three of which have been printed in multiple editions) and over 200 law review articles.[citation needed] He also writes a regular column for the Sacramento Bee and a monthly column for the ABA Journal and Los Angeles Daily Journal, and frequently pens op-eds for prominent newspapers across the country.[citation needed]
Chemerinsky has also argued several cases at the United States Supreme Court, including United States v. Apel, Scheidler v. National Organization for Women. Lockyer v. Andrade. and Van Orden v. Perry, and has written numerous amicus briefs....
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Clearly the wacko DC Judge Tanya Chutkan does not know the Law.
ERWIN CHEMERINSKY a Constitutional scholar and Dean of UC Berkeley Law School and author of several books on Constitutional law says it is unconstitutional to gag Trump.
