Since he came on the national political scene in 2015, Donald Trump has seemed able to say anything and never suffer consequences. More than once, he has blown the dog whistles of racism, called for violence, and used speech to intimidate those who dare to oppose him.
Trump has turned political rallies into political weapons. He has mustered an army of social media followers who take his words as their marching orders. Trump has also managed to get thousands of hours of free media attention for his incendiary speech.
He has even tried to say that the criminal charges brought against him are a test of this country’s commitment to free expression. For example, on August 3 Trump claimed that the indictments were a concession to the “Radical Left . . . [which] wants to Criminalize Free Speech.” His lawyer, John Lauro, labelled the August 1 indictment brought by Special Counsel Jack Smith charging Trump with election interference as “an attack on free speech, and [on] political advocacy.”
In an August 6 post on Truth Social, Trump tried the same tack when he called that indictment a “RIDICULOUS FREEDOM OF SPEECH/FAIR ELECTIONS CASE.” How to react to this kind of implausible recasting of the charged crime of election interference into a constitutional matter of individual rights?
Over the last several years, Trump’s political opponents, as well as America’s legal and political institutions, have seemed paralyzed by his outrages, unable to figure out effective means to counter his wild claims and flagrant falsehoods. That is why Smith’s request for a limited gag order in the Washington, D.C. election interference case is so important.
Trump, who has used freedom of speech to carry on his war against democracy, is now using it in a war against the American legal system. Through his lies and misrepresentations, he has succeeded in undermining the confidence of millions of people in the integrity of elections. His attacks on investigative agencies like the FBI, prosecutors, and judges seek to weaken those institutions as well.
As New York Times reporters Michael Shear and Katie Benner put it, “In his attempt at self-defense amid the swirl of legal cases and investigations involving himself, his aides and his associates, Mr. Trump is directly undermining the people and processes that are the foundation of the nation’s administration of justice.”
Smith’s request puts Trump’s plan, and the free speech claims he makes to advance it, in the crosshairs. It offers United States District Court Judge Tanya Chutkan, who is presiding over the Washington D.C. case, the chance to stand up to the former president’s use of speech to demean, threaten, and harass people who want to see justice done and the rule of law vindicated.
We can only hope that the judge does not fail that test.
But the test is not just for Judge Chutkan. What Trump is doing requires all of us to consider what freedom of speech should mean in the era in which we live.
The New York Times columnist Thomas Edsall got it right when he suggested that “Trump has brought into sharp relief the vulnerability of democracy in the midst of a communication upheaval more pervasive in its impact, both destructive and beneficial, than the invention of radio and television in the 20th Century.”
Edsall quoted law professor Toni Massaro, who says that “Those who believe in democracy’s virtues, as I do, need to engage the arguments about its threats. And those who believe in the virtues of free speech, as I also do, need to be cleareyed about the information distortions and gross inequalities and other harms to democratic and other public goods it produces.”
In the past, the major threat to free expression and democratic politics was that speech might be suppressed by an oppressive and censoring government. But today it is the weaponization of speech itself, and its dissemination through social media, that silences and controls the speech of others.
Weaponized speech threatens to destroy democratic and legal institutions. It cows people into feigned agreement and produces frightened acquiescence.
Trump is a master of this craft.
The latest indication of his success came this week when The Atlantic published a long story about Mitt Romney. During an interview with McKay Coppins, Romney talked about a Republican congressman who wanted to vote for Trump’s second impeachment, but “chose not to out of fear for his family’s safety. The congressman reasoned that Trump would be impeached by House Democrats with or without him—why put his wife and children at risk if it wouldn’t change the outcome?”
Coppins reports that “Later, during the Senate trial, Romney heard the same calculation while talking with a small group of Republican colleagues. When one senator, a member of leadership, said he was leaning toward voting to convict, the others urged him to reconsider. You can’t do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right.”
Democracy cannot survive if citizens and public officials fear violent reprisal for the exercise of their best political judgments.
I thought about the story Romney told when I read Smith’s request for a gag order. His motion offers example after example of Trump’s disparaging comments, implied threats, and outright lies.
It reminds Judge Chutkan that “The defendant made clear his intent to issue public attacks related to this case when, the day after his arraignment, he posted a threatening message on Truth Social: IF YOU GO AFTER ME, I AM COMING AFTER YOU.”
In the aftermath of that post, the Trump campaign again hid behind a free speech smokescreen. “The Truth post…,” the campaign said, “is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”
But Smith was not taken in.
Smith highlighted the “I AM COMING AFTER YOU” post as one piece of evidence that Trump “has an established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.”
He notes that Trump “has made good on his threat.” Since the indictment, Smith says, “the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses.”
Smith continues: “Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution—the judicial system—and to undermine confidence in and intimidate individuals—the Court, the jury pool, witnesses, and prosecutors.”
In his motion, Smith argues that “The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.”
That motion offers some troubling examples of this pattern. “On August 5, 2023, an individual was arrested because she called the Court’s chambers and made racist death threats to the Court that were tied to the Court’s role in presiding over the defendant’s case…. In addition, the Special Counsel has been subject to multiple threats, and the specific Special Counsel’s Office prosecutor that the defendant has targeted through recent, inflammatory public posts has been subject to intimidating communications.”
Smith predicts that “The defendant’s repeated, inflammatory public statements regarding the District of Columbia, the Court, prosecutors, and potential witnesses are substantially likely to materially prejudice the jury pool, create fear among potential jurors, and result in threats or harassment to individuals he singles out. Put simply,” he says, “those involved in the criminal justice process who read and hear the defendant’s disparaging and inflammatory messages (from court personnel, to prosecutors, to witnesses, to potential jurors) may reasonably fear that they could be the next targets of the defendant’s attacks.”
Smith asks the court to order Trump to refrain from making “extrajudicial statements that present a serious and substantial danger of materially prejudicing this case.” They include “(a) statements regarding the identity, testimony, or credibility of prospective witnesses; and (b) statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.”
Whatever Judge Chutkan decides, America owes Jack Smith a debt of gratitude for displaying what Slate’s Dahlia Lithwick calls “civic courage.” In a time of crisis for our democratic and legal institutions, such courage is essential. Without it, as Lithwick says, “there would only be bullies [like Trump] to occupy the field.”
