The First Amendment to the Constitution protects free speech, but Americans have no right to express opinions that could cause harm.
That’s why former President Donald Trump is still barred from speaking about prosecutors, individual jurors and court staffers – or their families – who were involved in his hush money trial in New York state, a New York appeals court ruled on August 1, 2024.
Trump will be sentenced in New York on September 18 after being found guilty in May 2024 of 34 separate counts of falsifying business records.
Judge Juan M. Merchan imposed the news blackout on March 26, just days before the hush money trial began. Merchan cited Trump’s public attacks on court personnel and witnesses, which “posed a significant threat to the integrity of the testimony of witnesses and potential witnesses.”
During the New York trial in spring 2024, Trump was repeatedly fined thousands of dollars by Merchan for violating the news blackout. Among other things, Trump attacked his former lawyer Michael Cohen, a key witness in the case, as a “disgraced lawyer and felon.” Trump also called the jury selection process biased and unfair, saying they were “lying to the judge to get on the Trump jury.”
Trump, through his surrogates, continues to complain that the news blackout is unconstitutional and violates his First Amendment right to free speech. Steven Cheung, a spokesman for the Trump campaign, calls it “blatantly un-American.”
I study the First Amendment and have written a user’s guide to it: “When Freedom Speaks.”
To be clear, there is no constitutional right to harm, even when making political statements. When speech is used as a weapon to terrorize, incite violence, or undermine democratic principles, it can be stopped and even punished.
I believe the news gag order against Trump is constitutional. It is narrowly drafted to give him ample opportunity to exercise his First Amendment right to speak.
Jane Rosenberg via Associated Press
The limits of freedom of expression
The First Amendment to the U.S. Constitution creates a safe space to speak without fear of government interference. Expressions about people’s politics, religion, or values - whether expressed in polite language, shouted or peppered with profanities, or even demonstrated by burning the flag – are protected from government efforts to suppress or silence them.
Of course, words can instill fear, outrage, and offend. The First Amendment provides ample protection for someone who wishes to express anger, frustration, and even hatred through words rather than violence. Tolerance of discord is built into the very structure of the First Amendment.
Courts have repeatedly relied on the default position that speech should be protected. Political speech enjoys the strongest protection offered by the First Amendment because it is an essential element of a democracy.
In fact, constitutional protection is assumed as soon as it is determined that the speech in question is political. A conflict of opinion may cause fear and disharmony, but it is part of the way a democracy works.
Restricting, suppressing, or prohibiting political speech violates First Amendment principles and is constitutionally justifiable only under the narrowest of circumstances: when the government has a binding and credible responsibility to protect its citizens.
The use of words that cause terror and induce fear for the life and limb of the target person is illegal.
Harassment or any other form of persistent and pervasive language that interferes with a person’s employment or education is illegal.
An illegal activity cannot become an expression of opinion protected by the Constitution simply because the activity was intended to convey a message.
Trump’s words stir up fear
While Trump will not lose his First Amendment rights if he appears in court, neither he nor anyone else may use them as a weapon to undermine the legal process.
Defendants can portray the justice system as rigged and prosecutors as politically motivated, but they cannot intimidate jurors, court personnel or witnesses.
It is the job of the jury, not the defendant, to judge the character and credibility of the witnesses. Trump’s remark that the jury is made up of “undercover liberal activists” undermines the integrity of the proceedings.
Trump’s words may also have contributed to potential jurors being fearful of the appeal. At least one witness expressed fear of exposure and retribution.
How arguments about freedom of speech stand up to the Constitution
While the First Amendment to the U.S. Constitution protects all forms of speech, whether civil or hateful, physical or verbal attacks that harm individuals or institutions cannot be converted into protected speech simply because they are expressed for a political purpose.
I am confident that Trump’s news blackout is narrowly and impartially drafted so that it can withstand a constitutional challenge.
