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ACLU sides with Trump against gag order given in federal criminal case

The American Civil Liberties Union free speech watchdog has sided with Donald Trump against a gag order that he was given in the federal criminal case over US election interference, saying the order violates the first amendment.

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The liberal human rights group, a bastion of the anti-Trump resistance in recent years, is a strange bedfellow for the Republican former president, though the ACLU has a long history of defending the speech rights of those it doesn’t agree with. The group notably has defended neo-Nazis who wanted to march in Skokie, Illinois; the National Rifle Association; and the Ku Klux Klan.

But in the Trump era, the ACLU has sometimes grappled with its work outside of progressive stances.

US district judge Tanya S Chutkan in Washington DC issued a limited gag order on 17 October against Trump in the criminal case there, preventing the presidential candidate and his attorneys from targeting special counsel Jack Smith, defense attorneys and their staff, the court’s staff or any likely witnesses in the case.

Trump has appealed the gag order and lashed out against it publicly, while also fundraising off of it for his 2024 race. Legal experts have warned that Trump’s repeated verbal attacks on the judges overseeing the court cases he faces serve to weaken the courts and could lead to threats against the judges.

Still, the ACLU notes in an amicus brief filed in the DC court, the gag order is overly broad and deprives Trump of his free speech rights in the midst of an election.

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The group says the order is too vague because it’s not clear what would consist of “targeting”. Its broadness would prevent Trump from speaking about issues that are relevant to the 2024 president contest, the attorneys argue, and the public has a right to hear from the candidate to decide their votes.

“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, executive director of the ACLU.

Romero added: “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.”

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First amendment case law makes clear that a person cannot be protected by it if they incite, threaten or call on others to commit crimes. In this case, the ACLU says, the court hasn’t shown there’s a serious threat that Trump’s comments could prevent the courts from carrying out the case successfully.

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“Former president, and now defendant, Donald Trump has said many things,” the ACLU writes in a brief to the court. “Much that he has said has been patently false and has caused great harm to countless individuals, as well as to the Republic itself. Some of his words and actions have led him to this criminal indictment, which alleges grave wrongdoing in contempt of the peaceful transition of power. But Trump retains a first amendment right to speech, and the rest of us retain a right to hear what he has to say.”