While no modern-day President has done more damage to civil liberties than President Trump, the matter of the gag order issued against him isn’t really about him – it's about free speech. The ACLU – which filed 400 legal actions against President Trump’s administration – has defended free speech for over a century. And gag orders are one of the most troubling types of restrictions to free speech as protected by the First Amendment because they make speech immediately punishable by fine or jail.
Here are five reasons the gag order is a concern to ACLU.
- 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. Such speech is already punishable.
- 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.
“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, ACLU executive director. “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.”