Jack Smith’s requested gag order, like judicial orders restricting Trump’s speech, seeks to balance constitutional rights | The Conversation

In each of former President Donald Trump’s four indictments, he has been allowed to stay out of jail before his trial so long as he abides by certain conditions commonly applied to most people accused of crimes in the U.S.

In the federal case in Washington, D.C., that concerns Trump’s alleged efforts to overturn the 2020 election, Trump is under a protective order barring him from speaking to people involved in the case except through or with his lawyers. In a document unsealed on Sept. 15, 2023, special counsel Jack Smith has also asked the judge in that case to issue a “narrow, well-defined” gag order against Trump to protect witnesses and the jury pool. In the New York state case regarding alleged falsification of business records, Trump has been ordered “not [to] communicate about facts of the case with any individual known to be a witness, except with counsel or the presence of counsel.” In the federal case in Florida, about his handling of classified documents, he is under a similar order.

In the Georgia racketeering case about the alleged attempt to overturn the results of the 2020 presidential election, Trump’s bond agreement imposes limits like those imposed by the other judges and also says he may not intimidate or threaten anyone involved in the case, including by posting on social media.

Trump has objected to all of these restraints, saying they limit his First Amendment rights to free speech – and in particular his right to discuss the cases while campaigning for the presidency.

As an attorney, professor and author of a book about the boundaries of the First Amendment, I see all of those orders as efforts to, in fact, protect both Trump’s First Amendment speech rights and his rights under another part…Read More


Lynn Greenky is a Professor Emeritus at Syracuse University, where she taught a beloved undergraduate course about the First Amendment for 10 years. She continues to write and speak about the First Amendment and is the author of  When Freedom Speaks.

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