Gov - Uscourts.cadc.40232.1208580499.0 3
Gov - Uscourts.cadc.40232.1208580499.0 3
Gov - Uscourts.cadc.40232.1208580499.0 3
DONALD J. TRUMP,
Defendant-Appellant.
______________________
TABLE OF CONTENTS
GLOSSARY ...............................................................................................................v
ARGUMENT .............................................................................................................3
I. The Panel Opinion Conflicts With the Supreme Court and Other
Circuits on the Governing Standard for Gagging a Criminal
Defendant....................................................................................................3
II. The Panel Opinion Conflicts With the Supreme Court and Other
Circuits on the Importance of Campaign Speech. ...................................... 6
III. The Panel Opinion Conflicts With Decisions of the Supreme Court
and Other Circuits by Restricting Political Speech Based on a
Heckler’s Veto. .........................................................................................10
CONCLUSION ........................................................................................................17
ADDENDUM
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
ii
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TABLE OF AUTHORITIES
Cases
Brandenburg v. Ohio,
395 U.S. 444 (1969) ........................................................................................ 2, 11
Bridges v. California,
314 U.S. 252 (1941) ........................................................................................4, 12
Brown v. Louisiana,
383 U.S. 131 (1966) ............................................................................................10
Craig v. Harney,
331 U.S. 367 (1947) ............................................................................................12
Garza v. Hargan,
2017 WL 4707112 (D.C. Cir. Oct. 19, 2017)......................................................17
Matal v. Tam,
582 U.S. 218 (2017) ............................................................................................10
iii
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Pennekamp v. Florida,
328 U.S. 331 (1946) ....................................................................................3, 4, 12
iv
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GLOSSARY
v
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court may gag the core political speech of the leading candidate for President of the
the judicial process. Fed. R. App. P. 35(b)(1)(B). The Supreme Court has “never
536 U.S. 765, 781-82 (2002). Yet the panel opinion does just that. Add.A67-68.
The opinion holds that President Trump must be silenced to protect trial
Add.A28, 33, 35, 43, 46, 52, 53, 61, 62, 64. In doing so, the opinion conflicts with
decisions of the Supreme Court and other Circuits, warranting en banc consideration
both to secure uniformity of this Court’s decisions and because of the question’s
First, the panel opinion contradicts Supreme Court precedent and deepens a
preexisting circuit split on the governing standard for gagging a criminal defendant’s
pretrial statements. Compare United States v. Ford, 830 F.2d 596, 598 (6th Cir.
1987), with United States v. Brown, 218 F.3d 415, 425-28 (5th Cir. 2000).
Confronted with a two-way split, the panel opinion adopts a third standard, for which
1
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it cites no authority. Add.A3, 25, 67. In so holding, the panel reasons that the
Supreme Court repudiated the long-established “clear and present danger” test in
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842 (1978), when in fact
the Court clarified and applied the test in that case, id. at 844-45.
Second, the panel opinion conflicts with the Fifth and Sixth Circuits on the
they differed on the governing standard, both Ford and Brown reached the same
result—in both cases, the candidate-defendant was given nearly “absolute freedom”
to discuss his case during the pendency of the campaign. Brown, 218 F.3d at 430.
The panel opinion, by contrast, authorizes extensive restrictions on the core political
speech of the leading candidate for President of the United States, based on
Third, the panel opinion conflicts with precedent of the Supreme Court and
speech. Add.A40-43. The panel opinion justifies this reasoning on the basis that the
contradicts the Supreme Court’s incitement doctrine. Brandenburg v. Ohio, 395 U.S.
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Fourth, the panel opinion conflicts with Supreme Court precedent that
Florida, 328 U.S. 331, 347 (1946). Here, the prosecution presented no evidence of
only people protected by the gag order—during the case’s months-long pendency.
witness, or court staffer felt intimidated by President Trump’s speech, despite the
public statements. See infra, Part V. It also overlooks and misapprehends numerous
ARGUMENT
I. The Panel Opinion Conflicts With the Supreme Court and Other Circuits
on the Governing Standard for Gagging a Criminal Defendant.
The panel opinion conflicts with decisions of the Supreme Court and the Fifth
and Sixth Circuits on the standard for gagging a criminal defendant’s speech.
1
On December 13, 2023, the district court stayed proceedings pending the outcome
of President Trump’s appeal relating to Presidential immunity and double jeopardy.
D.Ct. Doc. 186. The district court, however, held that it would retain jurisdiction to
enforce the gag order challenged in this appeal during the stay. See id. at 2-3.
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In Ford, the Sixth Circuit held that gagging a criminal defendant’s speech
830 F.2d at 598 (adopting “the exacting ‘clear and present danger’ test for free speech
cases”); id. (rejecting the alternative standard of “likelihood that prejudicial news
prior to trial will prevent a fair trial”); id. at 600 (applying “the clear and present
danger standard”). The Supreme Court has often applied the clear-and-present-
danger standard to court proceedings. See, e.g., Landmark, 435 U.S. at 844-45; New
York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (holding that “repression” of
speech about court proceedings “can be justified, if at all, only by a clear and present
clear and present danger to judicial administration”); Bridges v. California, 314 U.S.
252, 262 (1941) (“[T]he ‘clear and present danger’ language …. has afforded
came to the opposite conclusion. 218 F.3d at 425-28. It rejected the “clear and
present danger” test that Ford adopted, and it adopted the “substantial likelihood of
material prejudice” test that Ford rejected. See id. at 428. The Fifth Circuit
concluded that the Supreme Court’s intervening opinion in Gentile v. State Bar of
Nevada, 501 U.S. 1030 (1991)—which held that the “substantial likelihood”
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standard may apply to attorneys, id. at 1064-76—requires the same standard to apply
Confronted with this circuit split, the panel opinion opted for a third standard:
“a significant and imminent threat to the fair and orderly adjudication of the ongoing
criminal proceeding.” Add.A3; see also id. at A25, 28, 31, 36, 39, 67. The panel
opinion cited no authority for this test. See id. The panel opinion rejected the “clear
and present danger” standard as one that “gets constitutional precedent wrong,” id.
at A28; but it also stated that its “significant and imminent threat” test reflects more
id. at A27. Thus, the panel opinion’s standard falls somewhere between the “clear
and present danger” standard—which it rejects, id. at A27-30; and the “substantial
Because the panel opinion plainly envisions that the three standards materially
differ, see id. at A27-28; but see Gentile, 501 U.S. at 1037 (plurality opinion of
Kennedy, J.) (suggesting that two of the standards “approximate[]” each other), the
decision creates a three-way circuit split on the standard for gagging a criminal
The panel opinion also holds that the “clear-and-present-danger test” has “no
legal mooring,” because Landmark supposedly held that this standard is “not a
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proper ‘formula for adjudicating cases.’” Add.A29 (quoting Landmark, 435 U.S. at
842). But Landmark merely rejected the “mechanical application of the test” and
held that “[p]roperly applied, the test requires a court to make its own inquiry into
the imminence and magnitude of the danger….” 435 U.S. at 842-43 (emphases
that case. Id. at 845 (holding that “the clear-and-present-danger test … cannot be
met here”); id. (holding that “the test requires that the danger be ‘clear and
present’”); id. at 844 (addressing whether the statements presented a “clear and
II. The Panel Opinion Conflicts With the Supreme Court and Other Circuits
on the Importance of Campaign Speech.
The panel opinion conflicts with Brown and Ford, not just on the governing
legal standard, but in practical outcome. The panel opinion permits significant
candidate at the height of his campaign for office. Add.A67-68. By contrast, in both
Ford and Brown, the defendant-candidate was given virtually unfettered discretion
In Ford, the Sixth Circuit gave Congressman Ford unfettered latitude to speak
about his prosecution during his campaign, emphasizing that “the defendant, a
administration which he claims is persecuting him because of his political views and
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his race.” Ford, 830 F.2d at 600-01. Congressman Ford, the court reasoned, “will
soon be up for reelection. His opponents will attack him as an indicted felon.” Id.
at 601. “He will be unable to respond in kind if the District Court’s order remains
in place. He will be unable to inform his constituents of his point of view.” Id.
Likewise, in Brown, the district court “temporarily lifted the gag order … to
avoid interfering with Brown’s re-election campaign.” 218 F.3d at 419. “The district
court … made special allowances for Brown’s re-election campaign by lifting most
of the order … for the duration of his campaign,” so that “Brown was able to answer,
without hindrance, the charges of his opponents regarding his indictment throughout
the race.” Id. at 430. Citing this decision, the Fifth Circuit stated that “[t]he urgency
of a campaign … may well require that a candidate, for the benefit of the electorate
(emphasis added). Thus, though they disagree on the legal standard to apply, the
courts in Brown and Ford are closely aligned in outcome—the political candidate in
each case was given virtually “absolute freedom” to discuss the case. Id.
Indeed, the gag order has been criticized across the political spectrum for
interfering with the voters’ ability to hear from the leading Presidential candidate.
See, e.g., Terry Evans, Democrats’ Drive To Impose ‘Gag’ Orders on Trump Is Blow
https://themilitant.com/2023/11/04/democrats-drive-to-impose-gag-orders-on-
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he can say during the campaign and … disenfranchise[e] the tens of millions who
want to vote for him.”); Besty McCaughey, Why the ACLU Is Going To Bat For
Donald Trump, N.Y. POST (Nov. 1, 2023) (arguing that the Gag Order violates “the
elected again’”); The Editors, The Trump Gag Order Goes Too Far, NATIONAL
REVIEW (Oct. 18, 2023) (“Not only is free speech his right—it is the right of voters
in the forthcoming primary and general elections to hear it before choosing the
nation’s next president.”); Isaac Arnsdorf et al., In Trump Cases, Experts Say
Defendant’s Rhetoric Will Be Hard To Police, WASHINGTON POST (Aug. 23, 2023)
(the court should “permit voters access to the defendant’s statements as they decide
In stark contrast, the panel opinion here treats the fact that President Trump is
the leading candidate for President as virtually insignificant. The panel opinion
notes the crucial importance of campaign speech, see Add.A16, 44—but when it
actually analyzes the question, it explicitly declines to give the presence of campaign
This analysis contradicts Supreme Court precedent, which instructs that the
First Amendment “has its fullest and most urgent application precisely to the conduct
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of campaigns for political office.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
162 (2014) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). The
panel opinion cites this principle, Add.A16, but then disregards it in the actual
puzzling. The panel states in a footnote that “[a]t oral argument, Mr. Trump stated
that his position would be the same even if there were no political campaign
focus on the protection of political speech generally.” Add.A43 n.14 (citing Oral
Arg. Tr. 5:14-6:20). But at oral argument, President Trump’s counsel stated that, if
there were no campaign, “[o]ur position would be that it’s still unconstitutional, but
unconstitutional.” Oral Arg. Tr. 7:7-9. Counsel then described the campaign-speech
doctrine as the “crown jewel” of the arguments favoring reversal, while also
his “most power[ful] and compelling” argument. Id. at 8:6-7. President Trump’s
assertion of alternative grounds for reversal does not negate the Supreme Court’s
instruction that the First Amendment have its “fullest and most urgent application”
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III. The Panel Opinion Conflicts With Decisions of the Supreme Court and
Other Circuits by Restricting Political Speech Based on a Heckler’s Veto.
might lead unidentified third parties to “threaten” or “harass” trial participants. See,
e.g., Add.A5-9, 28, 31-35, 38-39, 43, 46-47, 52-53, 61-62, 64.
This justification contradicts the case law of the Supreme Court and other
Circuits. Under the First Amendment, public speakers “are not chargeable with the
danger” that their audiences “might react with disorder or violence.” Brown v.
Louisiana, 383 U.S. 131, 133 n.1 (1966) (plurality op.); Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134-35 (1992) (“Speech cannot be … punished
The panel opinion distinguishes these cases on the ground that they involve
here the panel is concerned that President “Trump’s followers will act minaciously
in response to his words,” id. (emphasis added). Under Supreme Court precedent,
solely on the audience’s reaction, regardless of whether that reaction is hostile to the
speaker, or hostile to those the speaker criticizes: “The Government may not … t[ie]
censorship to the reaction of the speaker’s audience.” Matal v. Tam, 582 U.S. 218,
250 (2017) (Kennedy, J., concurring in part and concurring in the judgment)
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(emphasis added); see also, e.g., Forsyth County, 505 U.S. at 134 (“Listeners’
reaction to speech is not a content-neutral basis for regulation.”); Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 209 (3d Cir. 2001) (Alito, J.) (“[T]he government may
not prohibit speech under a ‘secondary effects’ rationale based solely on the emotive
does not—it cannot be prohibited on the ground that it might lead independent third-
freedoms guaranteed by” the First Amendment and “sweeps within its condemnation
Brandenburg, 395 U.S. at 448; id. at 444-45, 448-49 (holding that the First
Amendment protects “advocacy” of criminal and other behavior that falls short of
“incitement to imminent lawless action”). The Supreme Court treats this rule as
of online discourse. See, e.g., Emily A. Vogels, The State of Online Harassment,
PEW RESEARCH CENTER (Jan. 13, 2021). Speech by any high-profile public figure
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utmost public importance. Indeed, that is exactly what happened here—the panel
opinion silences President Trump because it anticipates that some tiny minority of
his over 100 million listeners, over whom he has no control, might heckle others in
IV. The Panel Opinion Conflicts With Supreme Court Precedent Requiring
“Solidity of Evidence” To Justify Pretrial Speech Restrictions.
The Supreme Court has emphasized the importance of the evidentiary burden
them. Pennekamp, 328 U.S. at 347; see also Nebraska Press Ass’n v. Stuart, 427
U.S. 539, 565 (1976) (invalidating a prior restraint where “the record is lacking in
evil must be extremely serious and the degree of imminence extremely high before
requisite showing of imminence. The danger must not be remote or even probable;
it must immediately imperil.” Landmark, 435 U.S. at 845 (quotation marks omitted)
(quoting Bridges, 314 U.S. at 263; Pennekamp, 328 U.S. at 347; and Craig v.
The panel opinion’s justification falls far short of this “heavy burden of
showing justification for the prior restraint.” Nebraska Press Ass’n, 427 U.S. at 558.
any court staffer, potential witness, or prosecutor in this case. Instead, the panel
opinion relies heavily on supposed threats and harassment that occurred nearly three
years ago. Add.A5-7. In less stringent contexts, the Supreme Court rejects causal
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013). The panel erred by
For example, the panel opinion states that “[t]he day after Mr. Trump’s ‘IF
YOU GO AFTER ME, I’M COMING AFTER YOU!’ post, one of his supporters
called the district court judge’s chambers” and made racist threats. Add.A8 (citing
United States v. Shry, No. 4:23-cr-413, ECF 1, at 3 (S.D. Tex. Aug. 11, 2023)). The
panel concludes that President Trump’s post caused this threat. Add.A33 (describing
this threat as a “real-world consequence[]” of this post). President Trump’s post did
not refer to the case at all, but to contemporaneous reports that the Koch brothers
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were funding PACs against him.2 Moreover, the panel overlooks evidence from the
docket in Shry indicating that President Trump’s post did not cause Shry’s threat.
The credited testimony at Shry’s detention hearing states that the threat was inspired
by her watching the news, not social media. Shry’s father testified that she is a “non-
violent alcoholic” who “sits on the couch daily watching the news while drinking
too many beers,” and “becomes agitated by the news and starts calling people and
mentioned. Since the most pervasive subject on “the news” at the time was the
anything, this evidence supports the inference that the threat was inspired by the
The panel also states that President Trump’s social-media posts accused Vice
President Pence of “going to the ‘Dark Side’” and “‘making up stories about’ the
events of January 6, 2020.” Add.A8, 31. But Pence was then a rival candidate for
the Republican nomination for President who had just given a major speech
attacking President Trump on these very issues. James Oliphant, Pence Urges
2
See Alexandra Ulmer, US Conservative Group Led by Billionaire Koch To Spend
Big To Beat Trump, REUTERS (June 29, 2023), at
https://www.reuters.com/world/us/us-conservative-group-led-by-billionaire-koch-
set-spend-beat-trump-2023-06-29/; Brian Schwarz, Trump Goes on Offense Against
Koch Network, CNBC (Aug. 7, 2023), at https://www.cnbc.com/2023/08/07/trump-
goes-on-offense-against-koch-network.html; Appellant’s Br. 15 n.7.
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August 1, 2023, the indictment alleged that President Trump had told Pence “you’re
too honest.” J.A.52. As a result, “the Pence campaign updated its merch[andise]
offerings to take advantage” of the allegation to include “a hat and a shirt, both
bearing the two-word phrase ‘Too Honest.’” Dave Mendez, Pence Boosts
boroughs/politics/2023/08/04/pence-boosts-fundraising-off-of-trump-s--too-
honest--quote. Pence also fundraised off this and raised “more than 7,400
media post—stated that he “never” stated that “Mike was ‘too honest,’” and accused
The panel opinion assumes that President Trump has no valid interest in
speaking about prosecutors other than the Special Counsel. Add.A67-68. This
overlooks, for example, that one of those prosecutors raised concerns about undue
discussion of which constitutes core political speech. See Appellant’s Br. 4-5 (citing
Jon Levine, Biden Staffers Met With Special Counsel Jack Smith’s Aides Before
https://nypost.com/2023/08/26/biden-staffers-met-with-special-counsel-jack-
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Trump has no valid interest in speaking about the Special Counsel’s “family
members.” Add.A3. This overlooks that the Special Counsel’s wife has close ties
to the Obama family, which raises concerns of political bias that constitute core
political speech. Reply Br. 5 n.1 (citing Victor Nava, Trump Special Counsel’s Wife
Worked on Obama Film and Donated to Biden, N.Y. POST (Nov. 11, 2023), at
https://nypost.com/2022/11/23/trump-special-counsels-wife-worked-on-obama-
film-and-donated-to-biden/).
injuries are not allayed by the panel opinion’s attempts to narrow the scope of the
district court’s gag order. Add.A67-68. The order, as modified, suppresses large
Among other things, it silences the leading candidate for President of the United
witnesses” comprise major public figures who publicly attack President Trump amid
his campaign, such as Vice President Pence, Attorney General Barr, and similar
figures. Id. For its other restrictions, the order imposes a mens rea requirement, but
the panel opinion then ominously suggests that virtually any statement that results
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in third-party heckling will satisfy the mens rea requirement. Id. at A66. Both the
CONCLUSION
granted. Furthermore, the Court should enter an administrative stay of the gag order
pending consideration of this petition. See, e.g., Add.A11; Garza v. Hargan, 2017
WL 4707112, at *1 (D.C. Cir. Oct. 19, 2017) (per curiam) (unpublished order);
Petteway v. Galveston County, 2023 WL 8290715, at *1 (5th Cir. Nov. 10, 2023)
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ADDENDUM
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ADDENDUM
Table of Contents
No. 23-3190
v.
DONALD J. TRUMP,
APPELLANT
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The day after Mr. Trump’s “IF YOU GO AFTER ME, I’M
COMING AFTER YOU!” post, one of his supporters called
the district court judge’s chambers and said: “Hey you stupid
slave n[****]r[.] * * * If Trump doesn’t get elected in 2024,
we are coming to kill you, so tread lightly b[***]h. * * * You
will be targeted personally, publicly, your family, all of it.”
Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr-
413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11,
2023).
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Order at 3.
The district court then added that the Order did not prohibit
“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[.]” Order at 3. The district court’s Order
does not prohibit statements targeting the court or the judge
herself. See Order at 1–3.
2
https://perma.cc/VRG2-D6SZ.
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Cincinnati Ins. Co. v. All Plumbing, Inc., 812 F.3d 153, 156
(D.C. Cir. 2016).
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States Gypsum Co., 333 U.S. 364, 395 (1948)). On our review,
this court can “affirm, modify, vacate, set aside or reverse” the
district court’s Order. 28 U.S.C. § 2106.
III
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For that reason, “the First Amendment ‘has its fullest and
most urgent application’ to speech uttered during a campaign
for political office.” Eu v. San Francisco County Democratic
Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor
Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). “The candidate,
no less than any other person, has a First Amendment right to
engage in the discussion of public issues and vigorously and
tirelessly to advocate his own election and the election of other
candidates.” Brown v. Hartlage, 456 U.S. 45, 53 (1982)
(quoting Buckley, 424 U.S. at 52–53). That discussion is
critical to enabling “the electorate [to] intelligently evaluate the
candidates’ personal qualities and their positions on vital public
issues before choosing among them on election day.” Id.
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Mr. Trump’s right to a fair trial does not give him “the
right to insist upon the opposite of that right”—that is, a trial
prejudiced in his favor. See Singer v. United States, 380 U.S.
24, 36 (1965). The public has its own compelling interest “in
fair trials designed to end in just judgments.” Wade v. Hunter,
336 U.S. 684, 689 (1949); see Gentile, 501 U.S. at 1075;
Brown, 218 F.3d at 600 n.1 (locating such interest in the
common law and Article II’s Take Care Clause).
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4
Gentile had two majority opinions. Four justices found that the
state bar rule was unconstitutionally vague and would have found
that the rule violated the First Amendment. Gentile, 501 U.S. at
1051–1058 (Kennedy, J.). Four other justices found that the bar rule
was not unconstitutionally vague and did not violate the First
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*****
5
https://perma.cc/V6VH-Q3TV.
6
https://perma.cc/XHQ3-4UP7.
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IV
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restricting Order, see Trump Op. Br. 31–34, 43–45, and that
only a significant and imminent threat to the administration of
criminal justice will support restricting Mr. Trump’s speech.
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save the statute[,]” id. at 837 n.9. Instead, the “narrow and
limited question presented” in Landmark Communications was
“whether the First Amendment permits the criminal
punishment of third persons who are strangers to the inquiry
* * * for divulging or publishing truthful information
regarding” certain judicial proceedings. Id. at 837 (emphasis
added); see id. at 841 (“The question, however, is whether [the
State’s] interests are sufficient to justify the encroachment on
First Amendment guarantees * * * with respect to
nonparticipants such as Landmark.”) (emphasis added); see
also id. at 841 n.12.
7
While the Sixth Circuit applied the clear-and-present-danger
standard to an order restraining a criminal defendant’s speech in
United States v. Ford, 830 F.2d 596, 598–602 (6th Cir. 1987), it did
so before Gentile and did not acknowledge Landmark
Communications’ direction against using the clear-and-present-
danger standard as a formula for resolving cases.
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The record before the district court and its factual findings
demonstrate that some of Mr. Trump’s speech poses a
significant and imminent threat to the fair and orderly
adjudication of the criminal proceeding against him.
8
https://perma.cc/PMD6-BUDX; https://perma.cc/9VR2-HZGK;
Hr’g Tr. 55:16–22.
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9
https://perma.cc/ZK9H-8SKS.
10
https://perma.cc/9DFD-A7QP.
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https://perma.cc/F769-Z49A.
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Others too have had their lives turned upside down after
coming within Mr. Trump’s verbal sights. For example, a
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https://perma.cc/HC5Y-3XLT.
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Given the record in this case, the court had a duty to act
proactively to prevent the creation of an atmosphere of fear or
intimidation aimed at preventing trial participants and staff
from performing their functions within the trial process. Just
as a court is duty-bound to prevent a trial from devolving into
a carnival, see Sheppard, 384 U.S. at 357–358, so too can it
prevent trial participants and staff from having to operate under
siege.
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13
Should Mr. Trump have reasonable concerns about the impartiality
or actions of court or prosecutorial staff, and their effect on the
integrity of the trial process, the better course is for his counsel to
voice those concerns in a motion filed with the court, where that
filing will be a matter of public record.
14
At oral argument, Mr. Trump stated that his position would be the
same even if there were no political campaign underway, as he would
still be engaged in political speech. Oral Arg. Tr. 5:14–6:20. Given
that position, we focus on the protection of political speech generally.
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Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 889
(2009)). On the record before us, that compelling interest
establishes a sufficient predicate for the district court to have
imposed some limitation on trial participants’ speech. The
constitutional solicitude for political speech remains, though,
and requires that less restrictive alternatives not be viable and
that the scope of the order be narrowly tailored.
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https://perma.cc/K3UM-SS92 (displaying 6.51 million followers).
16
https://perma.cc/HC5Y-3XLT.
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https://perma.cc/P5HK-7LAG.
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Since the district court did not rely on the interest in protecting jury
impartiality and independence, we do not consider whether that
interest might support different restrictions from those we hold are
justified to protect witnesses, counsel, and court and attorney staff.
As a result, nothing in this opinion speaks to the district court’s
authority to consider additional measures to protect the jury pool and
jury should such protection prove necessary going forward.
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But that post does not even arguably fall within the bounds
of the Order in the first place because it does not identify,
concern, or otherwise discuss any covered person. Without an
example of speech about a person covered by the Order that
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are not like elections, to be won through the use of the meeting-
hall, the radio, and the newspaper.” Id. at 350 (quoting
Bridges, 314 U.S. at 271).
19
Other courts have upheld speech-limiting orders that similarly
require linkage between the communication and the person’s
participation as a witness. See, e.g., Russell, 726 F.2d at 1008
(sustaining order prohibiting potential witnesses from making
statements to media “that relate[] to, concern[], or discuss[] the
testimony such potential witnesses may give in this case, or any of
the parties or issues such potential witness expects or reasonably
should expect to be involved in this case”) (emphasis omitted);
Tijerina, 412 F.2d at 663 & n.1 (upholding order prohibiting parties,
counsel, and witnesses from publicly speaking about “the merits of
the case, the evidence, actual or anticipated, the witnesses or the
rulings of the Court”).
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other court staff will themselves become targets for threats and
harassment[,]” Order at 2, the district court had the authority to
take some steps to prevent obstruction of the court’s capacity
to manage and conduct this case in an effective, efficient, and
timely manner, see Sheppard, 384 U.S. at 363.
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Likewise, the courts and the judges who sit on them enjoy
“no greater immunity from criticism than other persons or
institutions.” Landmark Commc’ns, 435 U.S. at 839 (quoting
Bridges, 314 U.S. at 289 (Frankfurter, J., dissenting)). The
district judge in this case plays a centrally important role in
adjudicating this case and guiding it through trial. Those
reasons, presumably, are why the district court commendably
did not include in the Order speech directed at the judge herself
or the court as an institution.
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No mens rea is needed with respect to the portion of the Order
dealing with speech about witnesses. As explained above, any
speech by trial participants concerning witnesses’ participation in the
case, regardless of motive or mindset, threatens to discourage or
influence witness testimony—testimony that the court has an
obligation to keep free of outside influence. See Sheppard, 384 U.S.
at 359. Against that threat, defendants have little legitimate interest
in publicly commenting on the fact or expected substance of witness
testimony before it occurs. See Section V.B, supra. Further, unlike
witnesses, the court’s and counsel’s staffs have elected to serve in
government or on this case. For their part, witnesses have civic and
legal duties to truthfully provide relevant information, but may find
any participation in the trial process unwelcome and difficult.
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VI
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So ordered.
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1
v.
DONALD J. TRUMP,
APPELLANT
JUDGMENT
This cause came on to be heard on the record on appeal from the United States District
Court for the District of Columbia and was argued by counsel. On consideration thereof, it is
ORDERED and ADJUDGED that the District Court’s Order be affirmed in part and
vacated in part, in accordance with the opinion of the court filed herein this date. It is
Per Curiam
BY: /s/
Daniel J. Reidy
Deputy Clerk
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The parties in the district court include the United States of America and
Donald J. Trump. The district court denied leave to file to proposed amici curiae.
The parties before this Court include the United States of America and Donald J.
State of Iowa, State of West Virginia, State of Alabama, State of Alaska, State of
Dakota, State of Oklahoma, State of South Carolina, State of South Dakota, State of
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DISCLOSURE STATEMENT
entity.
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CERTIFICATE OF SERVICE
I hereby certify that, on December 18, 2023, I caused a true and correct copy
operation of the Court’s electronic filing system on counsel for all parties who have
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CERTIFICATE OF COMPLIANCE
Microsoft Word.
19