Trump’s free speech faces court-ordered limits, like any other defendant’s — 2 law professors explain why, and how Trump’s lawyers need to watch themselves too

The E. Barrett Prettyman U.S. Courthouse in Washington, D.C., where an Aug. 11, 2023, hearing was held on the Trump case. Mandel Ngan/AFP via Getty Images)

A 90-minute court hearing on Aug. 11, 2023, that would have been routine in almost any other case was, in fact, historic. It was the first time lawyers prosecuting and defending former President Donald Trump on charges he attempted to overturn the 2020 election appeared before the federal judge in the case.

At issue in the hearing before Judge Tanya Chutkan were public statements about what in legal terms is called “discovery” – defined by the American Bar Association as “the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial.” Prosecutors from the Department of Justice wanted Chutkan to bar Trump and his lawyers from releasing or commenting publicly on those materials with something called a “protective order,” because public comments could end up intimidating witnesses or tainting the pool of potential jurors. Trump’s lawyers said any limit on the right to speak about the documents violated Trump’s free speech rights.

Chutkan told Trump’s lawyers she would impose limits on what he could say. “I caution you and your client to take special care in your public statements in this case,” she said. “I will take whatever measures are necessary to protect the integrity of these proceedings.” The Conversation’s senior politics and society editor, Naomi Schalit, interviewed attorneys Thomas A. Durkin and Joseph Ferguson, law professors at Loyola University, Chicago, about the hearing.

Do people lose their First Amendment rights when they are criminally indicted?

Durkin: You don’t really lose your rights, but the discovery process requires certain restrictions on what you can do with what are essentially government documents and information. So I’m not sure that’s a restriction of the First Amendment. From what I heard, the judge said to Trump and his lawyer, certain things are going to be restricted, and some of your rights are going to be limited. I don’t see that as a horribly difficult imposition.

Ferguson: A defendant experiences this as a constraint. But Tom and I know, as longtime lawyers, if you put yourself in that situation, you’re not being constrained from doing something you otherwise have a right to do. You have put the constraint on yourself.

This is not a limitation on Trump’s standing free speech rights. They are not absolute and must operate within the confines of the competing interest of justice in this case. The initial reports are that the judge has made clear that justice trumps other considerations.

Attorneys for former U.S. President Donald Trump − John Lauro, left, and Todd Blanche, right − arrive at the E. Barrett Prettyman U.S. Courthouse on Aug. 11, 2023, in Washington, D.C.
Win McNamee/Getty Images

What did the judge say?

Ferguson: The judge has signaled that Trump’s rights as a criminal defendant are subject to the rules of the court. This will frame all subsequent decisions. The judge and the lawyers as officers of the court have a responsibility to ensure the integrity of the proceedings, against the backdrop of the integrity of the criminal justice system.

Trump and his team are attempting to infuse politics into the case and denigrate, delegitimize and politicize the prosecutors and the court itself and all of the players. That heightens the need for the judge to lay down the bright line. The normal concerns for a judge in these cases is the possible tainting of the jury pool, the intimidation of witnesses and other forms of interference with the process of justice.

We are not just talking only about the defendant. His lawyers have been appearing everywhere on TV. What the judge says and rules about the limitations on what lawyers can say – and her enforcement of those – may be as important as anything else here. Trump’s lawyers are his proxies not only for the case itself but for his political purposes, to try the case in the public.

Durkin: I recently said that it seemed to me Trump was looking for a mouthpiece and not a lawyer. And I think there is a fear, as Joe says, of the client dictating to the lawyers what to do. A lot of people have commented publicly how unprofessional the quotes of many of his lawyers seem to be and that they seem to be sometimes making admissions on his behalf. They don’t seem to be very experienced in dealing with the press.

Where I would probably part company a little bit with Joe is that it’s of course the defendant’s lawyers’ desire to taint the jury pool. That’s the name of the game. But there are ways to do it professionally and there are ways not to do it.

The government is pushing for a speedy trial. How does that strike you?

Ferguson: There is something bigger that’s involved here. Existing Department of Justice practice is you don’t take a matter to trial in the 60 days before an election. That is certainly on the prosecution’s mind. But one thing that those rules really don’t contemplate is the contemporary world, in which we’re in a constant state of elections and electioneering, which is certainly the case for Trump.

Durkin: It’s kind of a reverse of the typical kind of case. And the government is attempting to dump all this discovery material on the defense right away so that Trump’s lawyers can’t claim, “We need more time.”

The court session on Friday was focused on the terms of a protective order, which would determine what materials and information could be made public, right?

Ferguson: These orders are routine in any case that includes highly sensitive information or itself is a matter of major public controversy.

Members of the Republican Party in Iowa show support for different 2024 candidates, including former president Donald Trump, at the Iowa State Fair on Aug. 9, 2023.
Chip Somodevilla/Getty Images

So the hearing was about what Trump’s lawyers could say, not just Trump?

Durkin: I’m working on a case where the judge’s protective order requires that anything that’s going to be filed that is sensitive material has to be filed under seal. That greatly limits the lawyers’ ability to file speaking motions – motions with a lot of detail – in the public domain. Speaking motions, like Smith’s speaking indictment, are one of the ways a good defense lawyer can attempt to influence the jury, because you can dump documents into pleadings with impunity.

So you’re saying that lawyers can use those motions as a way to sneak in stuff that normally wouldn’t be able to get before the public.

Durkin: Yes.

What did the prosecution ask for in this hearing?

Durkin: From what I understood, the prosecution wanted everything to be labeled sensitive, which is very unusual.

If materials are labeled sensitive, you have to keep your lips zipped?

Durkin: Yes. It relates to who you can show the materials to, whether you can leave them copies, whether you have to file them under seal or not. And that’s not an uncommon fight that people have.

So the government wanted to just get this done with and call everything sensitive and not have fights about each document they’re giving the defense.

Ferguson: There are two approaches here. One is the government’s approach, which is just put the whole thing under the protective order so the defense gets immediate access, and the judge and the parties can sort out problems later as the case moves along. While the defense wants it sorted out now, which would take time and cause delay.

At one point, Trump’s lawyers said keeping all of the discovery documents secret would be giving an advantage to Joe Biden.

Ferguson: I look at that as goading the judge into conceding that what she’s doing is going to have an effect on politics. She didn’t bite – she kept a clean line here, saying, not my role, not my concern.

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.