Recent criticisms focusing on two judicial gag orders enlisted to curtail former President Donald Trump’s public addresses regarding his numerous legal proceedings portray a troubling reflection of the United States Supreme Court’s discriminative protection of parts of the Constitution. Judges issued these gag orders in response to Trump’s ongoing commentaries targeting their law clerks and potential witnesses involved in his numerous civil and criminal trials. Some critics, however, have objected to this action.
This second gag order, instigated by Judge Tanya Chutkan in the federal investigation of Trump’s attempts to overturn the 2020 election results, has garnered particular critique. Opponents of this decision see it as an unnecessary restriction on free speech, despite the inflammatory nature of Trump’s commentary. Such objections mirror the Supreme Court’s selective approach to upholding constitutional rights.
Among the critics, Erwin Chemerinsky, dean of UC Berkeley School of Law, argued that regardless of one’s attitudes toward Trump’s speech, it cannot, and should not, be restricted as a means of protecting public servants. This view, however, overlooks numerous legal proceedings where speech is indeed limited to uphold other societal values, such as in instances of conspiracy — a current charge facing Trump in Georgia, or public safety situations such as refraining from shouting “fire” in a crowded location.
A considerable number of critics argue that Chutkan’s order was unconstitutionally opaque. This perspective, supported by the ACLU, states that the order’s prohibition of Trump “targeting” possible witnesses does not sufficiently delineate what constitutes a permitted remark versus a prohibited one. This objection disregards the fact that Trump repeatedly made blatant threats to witnesses, saying, “If you go after me, I’m coming after you.”
In recent times, the Supreme Court’s interpretation of free speech protection has become overstretching, allowing even those committing animal cruelty for sexual satisfaction to escape punishment. Yet, it often fails to address other constitutional protections, especially those covered by the Fourth Amendment.
Notably, the Supreme Court has taken to expanding the domain of free speech, and in doing so, has often undermined other constitutional guarantees. For instance, they ruled that website designers’ freedom of speech outweighed the anti-discrimination rights of gay couples. Such actions make it increasingly clear that the Supreme Court prioritizes some rights over others, and implicitly, some individuals over others.
Critics arguing in favor of protecting Trump’s speech under the guise of safeguarding constitutional freedoms must reconsider this bias. Their criticisms unwittingly echo a skewed set of priorities that speaks to a broader issue of constitutional selectivity, as demonstrated by the Supreme Court’s past and current actions.
This discussion does not necessarily represent the views of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author of the original article, Tonja Jacobi, is a professor of law and holds the Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, specializing in Supreme Court judicial behavior and public law.