'First Amendment right to speak': ACLU sides with Trump in gag order challenge

The American Civil Liberties Union (ACLU), which saw its membership and donations surge during the Trump presidency, is now taking the former president's side in his opposition to Judge Tanya Chutkan's gag order.

In the ACLU's amicus brief filed Wednesday, the group conceded that the ex-president's "words and actions have led him to this criminal indictment, which alleges grave wrongdoing in contempt of the peaceful transition of power," but nonetheless argued that Chutkan's October 17 gag order was an unconstitutional violation of his free speech rights.

"Trump retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say. Thus, any restraint this Court imposes on Defendant’s future speech must be precisely defined and narrowly tailored to protect the impartial administration of justice," the ACLU argued.

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In its reporting on the brief, CNN noted that in handing down the gag order, Chutkan — who is overseeing Trump's legal proceedings in the January 6 case — said the 45th president of the United States "does not have the right to say and do exactly what he pleases." The judge hinted at legal consequences for Trump if he said anything that was meant to "target" special counsel Jack Smith, court staff and/or potential witnesses. However, the ACLU said in its brief that the verb "target" was overly broad.

"The entire order hinges on the meaning of the word ‘target,'" the ACLU wrote. "But that meaning is ambiguous, and fails to provide the fair warning that the Constitution demands, especially when, as here, it concerns a prior restraint on speech."

Judge Chutkan has temporarily paused the gag order while she hears from both prosecutors and defense attorneys. Jack Smith's team contended that the order should be reinstated, citing Trump's attacks on former White House Chief of Staff Mark Meadows, who testified before Smith's grand jury earlier this year.

"This is not about whether I like the language Mr. Trump uses. This is about language that presents a danger to the administration of justice," Chutkan previously said of the gag order.

READ MORE: Special counsel wants Trump gag order reinstated over alleged witness intimidation

Trump is currently facing four felony counts in relation to the January 6 investigation: Conspiracy to defraud the United States, conspiracy to disrupt an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights, all of which Trump has pleaded not guilty to. Notably, Smith did not prosecute Trump over his January 6 speech, with legal observers contending Smith didn't want to be perceived as intruding on the ex-president's First Amendment rights.