Judge Chutkan's Trump "gag order" called unconstitutional by Berkeley Law Dean Chemerinsky

 

In a Los Angeles Times opinion piece by  the law Dean at the University of California - Berkeley Erwin Chemerinsky  labels unconstitutional Judge Tanya Chutkan's restraints on Donald Trump.  He objects to "prior restraints" designed to "prevent government officials from being criticized or even vilified".

In my opinion Chemerinsky to quickly dismisses the risk of violence posed by Trump's rants which fall short of direct calls for violence but which, as we saw most dramatically on January 6, 2021, often lead his adherents to act violently.

On the other hand, Harvard Con Law prof Laurence Tribe has embraced this analysis by two former federal prosecutors who think that Chutkan's Order is "finely crafted" to withstand Constitutional review.

The former federal and state prosecutor who tweets at X as @legalnerd observes:

"I agree w/Chemerinsky. But if Trump fails to comply w/gag order before any appeal he may file is decided, and he is found to be in criminal contempt and punished, under the collateral bar rule, he loses his right to challenge the order and punishment."

- GWC

from the Order:

***In order to safeguard the integrity of these proceedings, it is necessary to impose certain restrictions on public statements by interested parties. Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed. See ECF No. 57 at 3–5. Since his indictment, and even after the government filed the instant motion, Defendant has continued to make similar statements attacking individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff. See id. at 6–12. Defendant has made those statements to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or “thugs,” or deserve death. Id.; ECF No. 64 at 9–10. 

The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment. And that risk is largely irreversible in the age of the Internet; once an individual is publicly targeted, even revoking the offending statement may not abate the subsequent threats, harassment, or other intimidating effects during the pretrial as well as trial stages of this case.

***Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings. Accordingly, and pursuant to Local Criminal Rule 57.7(c), it is hereby

 ORDERED that: All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony. This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.