HELENA – Montana Attorney General Austin Knudsen joined 18 other state attorneys general in asking a court of appeals to reverse an unconstitutional gag order on President Donald Trump. The order is a violation of the President’s right to free speech and Americans’ essential right to hear what he has to say as a candidate in the Republican presidential primary and ahead of the 2024 presidential election. 

The attorneys general filed an amicus brief Tuesday in support of Trump in United States of America vs. Donald J. Trump. In October, the United States District Court for the District of Columbia ordered the gag order on Trump barring him and his lawyers from criticizing the court, prosecutors, and potential witnesses – who could even be his primary opponents – leading into the presidential election. 

“No branch of government may abridge free speech. That right is paramount when it comes to protected political speech,” the attorneys general wrote. “The district court here overstepped its role in issuing an overly broad order denying Defendant, President Donald J. Trump, from making public statements about ‘individuals involved in the judicial process.’ That overbroad Order—an order that a major United States presidential candidate mute himself on a major campaign issue—cannot survive any level of scrutiny.” 

If the vague and broad order is allowed to stand it will set a dangerous precedent that courts can silence their critics and undermine the First Amendment that grants free speech to all Americans, the attorneys general said.  

The district court’s analysis fails strict scrutiny because the district court did not narrowly tailor its prior restraint to prevent imminent threats against individuals that would interfere with the administration of justice. The order also does not satisfy the strict scrutiny required to justify prior restraints and is too vague. 

“The district court must give President Trump clarity as to what, precisely, is prohibited or else it fails to give the fair warning the Constitution requires. Without that fair warning, it is almost certain to impermissibly chill his political speech,” the attorneys general wrote. “The Order’s vagueness here restricts speech by inevitably leading President Trump and his counsel ‘to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.’ That ‘inhibits the exercise of’ First Amendment guaranteed freedoms.” 

For example, the order is so vague that it seems to contradict itself as it prohibits Trump from making statements that target potential witnesses – like Vice President Mike Pence – but also states that Trump may “criticize the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.” Forcing Trump to carefully parse his words to avoid mentioning the possible substance of Pence’s possible testimony when only the federal government and Pence know what’s in Pence’s potential testimony (if he is even called as a witness). 

Additionally, the order interferes with the ongoing presidential election and denies Americans the opportunity to hear Trump’s opinions on important issues. 

Attorneys general from Alabama, Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Utah also joined the brief led by Iowa and West Virginia. 

Click here to read the brief.

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