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`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued November 20, 2023
`
`
`Decided December 8, 2023
`
`No. 23-3190
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`DONALD J. TRUMP,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:23-cr-00257-1)
`
`
`
`
`
`D. John Sauer argued the cause for appellant. With him
`on the briefs were John F. Lauro, Emil Bove, William O.
`Scharf, and Michael E. Talent.
`
`
`Brenna Bird, Attorney General, Office of the Attorney
`General for the State of Iowa, and Eric H. Wessan, Solicitor
`General, were on the brief for amici curiae Iowa, et al. in
`support of appellant.
`
`
`
`
`
`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued November 20, 2023
`
`
`Decided December 8, 2023
`
`No. 23-3190
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`DONALD J. TRUMP,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:23-cr-00257-1)
`
`
`
`
`
`D. John Sauer argued the cause for appellant. With him
`on the briefs were John F. Lauro, Emil Bove, William O.
`Scharf, and Michael E. Talent.
`
`
`Brenna Bird, Attorney General, Office of the Attorney
`General for the State of Iowa, and Eric H. Wessan, Solicitor
`General, were on the brief for amici curiae Iowa, et al. in
`support of appellant.
`
`
`
`
`
`
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`Gene P. Hamilton and Judd E. Stone, II were on the brief
`for amicus curiae America First Legal Foundation in support
`of appellant.
`
`
`Dennis Grossman was on the brief for amicus curiae
`Christian Family Coalition in support of appellant.
`
`
`Cecil W. VanDevender, Assistant Special Counsel, U.S.
`Department of Justice, argued the cause for appellee. With him
`on the brief were J.P. Cooney, Deputy Special Counsel,
`Raymond N. Hulser, Counselor to the Special Counsel, James
`I. Pearce and John M. Pellettieri, Assistant Special Counsels,
`and Molly G. Gaston and Thomas P. Windom, Senior Assistant
`Special Counsels.
`
`
`Before: MILLETT, PILLARD, and GARCIA, Circuit Judges.
`
`Opinion for the Court filed by Circuit Judge MILLETT.
`
`MILLETT, Circuit Judge:* A federal grand jury indicted
`former President Donald J. Trump for conspiring to overturn
`the 2020 presidential election through unlawful means and for
`obstructing the election’s certification. Soon thereafter, Mr.
`Trump posted multiple statements on his social media account
`attacking potential witnesses in the case, the judge, and the
`Special Counsel and his staff prosecuting the case. The district
`court subsequently issued an order restraining the parties and
`their counsel from making public statements that “target” the
`parties, counsel and their staffs, court personnel, and “any
`
`
`* NOTE: Portions of this opinion contain sealed information, which
`has been redacted.
`
`
`
`
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`reasonably foreseeable witness or the substance of their
`testimony.”
`
`Mr. Trump appeals the district court’s order. His appeal
`involves the confluence of two paramount constitutional
`interests: the freedom of speech guaranteed by the First
`Amendment and the federal courts’ vital Article III duty to
`ensure the fair and orderly administration of justice in criminal
`cases. We agree with the district court that some aspects of Mr.
`Trump’s public statements pose a significant and imminent
`threat to the fair and orderly adjudication of the ongoing
`criminal proceeding, warranting a
`speech-constraining
`protective order. The district court’s order, however, sweeps
`in more protected speech than is necessary. For that reason, we
`affirm the district court’s order in part and vacate it in part.
`
`Specifically, the Order is affirmed to the extent it prohibits
`all parties and their counsel from making or directing others to
`make public statements about known or reasonably foreseeable
`witnesses concerning their potential participation in the
`investigation or in this criminal proceeding. The Order is also
`affirmed to the extent it prohibits all parties and their counsel
`from making or directing others to make public statements
`about—(1) counsel in the case other than the Special Counsel,
`(2) members of the court’s staff and counsel’s staffs, or (3) the
`family members of any counsel or staff member—if those
`statements are made with the intent to materially interfere with,
`or to cause others to materially interfere with, counsel’s or
`staff’s work in this criminal case, or with the knowledge that
`such interference is highly likely to result. We vacate the Order
`to the extent it covers speech beyond those specified categories.
`See 28 U.S.C. § 2106.
`
`
`
`
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`I
`
` A
`
`
`
`
`On August 1, 2023, a federal grand jury in Washington,
`D.C., indicted former President Donald J. Trump on four
`felony counts of conspiring to overturn the 2020 presidential
`election. See Indictment ¶¶ 1–4, 127–128. Specifically, the
`indictment alleges that then-President Trump and his co-
`conspirators “used knowingly false claims of election fraud to
`get state legislators and election officials to subvert the
`legitimate election results[,]” “attempted to use the power and
`authority of the Justice Department to conduct sham election
`crime investigations[,]” and “attempted to enlist the Vice
`President to use his ceremonial role at the January 6
`certification proceeding to fraudulently alter the election
`results.” Indictment ¶ 10.
`
`The conduct charged in the indictment arises out of then-
`President Trump’s refusal to concede his loss in the 2020
`presidential election. Indictment ¶¶ 1–2. He claimed that there
`had been outcome-determinative fraud and that he had actually
`won. Indictment ¶ 2; see also President Donald J. Trump,
`Statement on 2020 Election Results at 0:34–0:46, 18:11–18:15,
`C-SPAN (Dec. 2, 2020) (claiming that the election was
`“rigged” and characterized by “tremendous voter fraud and
`irregularities”).1
`
`According to the indictment, then-President Trump waged
`a campaign to remain in power by publicly and privately
`
`
`1 https://www.c-span.org/video/?506975-1/president-trump-stateme
`nt-2020-election-results.
`
`
`
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`pressuring state and local officials to overturn the 2020 election
`results, even though he lacked any proof of relevant
`irregularities, voter fraud, or vote rigging. Indictment ¶ 10; see,
`e.g., Donald J. Trump for President, Inc. v. Secretary of
`Pennsylvania, 830 F. App’x 377, 381 (3d Cir. 2020)
`(“[C]alling an election unfair does not make it so. Charges
`require specific allegations and then proof. We have neither
`here.”).
`
`During the alleged efforts to overturn the 2020 election
`results, the then-President lambasted several state and local
`officials, often naming and blaming specific individuals on
`social media for not supporting his claims of election fraud.
`Special Counsel Mot. to Ensure that Extrajudicial Statements
`Do Not Prejudice These Proceedings 2–5, ECF 57 (Sept. 15,
`2023) (“Special Counsel Mot.”); see Indictment ¶¶ 28, 32. Mr.
`Trump’s statements subjected those persons to threats and
`abuse from his supporters. Special Counsel Mot. 3–5. One
`official explained: “After the President tweeted at me by name,
`calling me out the way that he did, the threats became much
`more specific, much more graphic, and included not just me by
`name but included members of my family by name, their ages,
`our address, pictures of our home. Just every bit of detail that
`you could imagine. That was what changed with that tweet.”
`Special Counsel Mot. 3; Indictment ¶ 42. Another official
`explained that he needed additional police protection and
`avoided
`
`
`. And after
`. Special Counsel Mot. 3
`then-President Trump criticized a governmental office for
`certifying the election, a member of that office had to
`
` when one of the then-President’s supporters posted
`
`
`
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`the official’s address online. Special Counsel Mot. 3
`.
`
`
`
`
`In addition, then-President Trump is alleged to have
`publicly criticized and shortly thereafter fired the Director of
`the Department of Homeland Security’s Cybersecurity and
`Infrastructure Security Agency
`for making statements
`reassuring the public about the 2020 presidential election’s
`security. Indictment ¶ 11; Special Counsel Mot. 4. Two weeks
`later, a lawyer then working for Mr. Trump publicly stated that
`the director “should be drawn and quartered. Taken out at
`dawn and shot.” Special Counsel Mot. 4; Ben Fox,
`Cybersecurity Official Fired by Trump Sues Over Threats,
`ASSOCIATED PRESS (Dec. 8, 2020). That statement prompted a
`wave of death threats against the former official and his family
`that forced them to evacuate their home until the danger abated.
`Special Counsel Mot. 4.
`
`The then-President and his campaign also allegedly
`singled out private individuals. Indictment ¶¶ 21, 31; see id.
`¶¶ 26, 29. A Georgia election worker, for example, testified
`before a congressional committee that she and her family were
`bombarded with violent and racist threats after the then-
`President, falsely and without any evidentiary basis, accused
`her of election misconduct. Select Committee Tr. at 7:22–8:3,
`26:24–27:2 (May 31, 2022); Indictment ¶ 31. She testified:
`
`Do you know how it feels to have the President of the
`United States to target you? The President of the United
`States is supposed to represent every American, not to
`target one. But he targeted me, * * * a small-business
`owner, a mother, a proud American citizen who stood up
`to help Fulton County run an election in the middle of the
`
`
`
`
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`pandemic. * * * [W]hen someone as powerful as the
`President of the United States eggs on a mob, that mob will
`come.
`
`Special Counsel Mot. 4–5; see Select Committee Tr. at 8:8–20.
`
`
`B
`
`At a hearing shortly after the indictment, the district court
`told the parties that it was “committed to ensuring that this case
`proceeds in the normal course that our criminal justice system
`prescribes.” Hr’g Tr. 71:3–5, ECF 29 (Aug. 11, 2023). The
`district court emphasized that it “intend[ed] to ensure that Mr.
`Trump is afforded all the rights that any citizen would have,”
`but then cautioned the parties that it would “prevent what the
`Supreme Court called in Sheppard v. Maxwell[, 384 U.S. 333
`(1966),] a ‘carnival atmosphere’ of unchecked publicity and
`trial by media rather than our constitutionally established
`system of trial by impartial jury.” Id. 71:11–16. To that end,
`the district court told both parties “to take special care in [their]
`public statements about this case[,]” adding that it would “take
`whatever measures are necessary to safeguard the integrity of
`these proceedings.” Id. 72:16–19.
`
`
`Before and after the district court’s warning, Mr. Trump
`repeatedly used his public platform to denigrate and attack
`those involved in the criminal case against him. The day after
`his initial court appearance, Mr. Trump posted on his social
`media account: “IF YOU GO AFTER ME, I’M COMING
`AFTER YOU!” Special Counsel Mot. 6. He then shared with
`his over six million social media followers on Truth Social his
`view that the district court judge is a “fraud dressed up as a
`judge[,]” “a radical Obama hack[,]” and a “biased, Trump-
`
`
`
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`hating judge[.]” Special Counsel Mot. 8–9. He labeled the
`prosecutors in the case “[d]eranged[,]” “[t]hugs[,]” and
`“[l]unatics[.]” Special Counsel Mot. 8–9; Special Counsel
`Reply in Support of Special Counsel Mot. 10, ECF 64 (Sept.
`29, 2023) (“Special Counsel Mot. Reply”).
`
`
`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).
`
`Mr. Trump also took aim at potential witnesses named in
`the indictment, including former Vice President Michael
`Pence, whom he accused of going to the “Dark Side[.]” Special
`Counsel Mot. Reply 9; see Special Counsel Mot. 11 & n.20;
`Special Counsel Mot. Reply 9 (discussing attacks on former
`Attorney General Bill Barr).
`
`
`C
`
`statements were
`that Mr. Trump’s
`Arguing
`the
`integrity of
`the[] proceedings” by
`“undermin[ing]
`impartiality of
`the
`jury pool while
`impacting “the
`simultaneously influencing witness testimony[,]” the Special
`Counsel asked the district court for an order restraining Mr.
`Trump’s public statements about the trial. Special Counsel
`Mot. 1, 15. Specifically, the prosecution sought to prohibit (1)
`“statements regarding the identity, testimony, or credibility of
`
`
`
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`prospective witnesses”; and (2) “statements about any party,
`witness, attorney, court personnel, or potential jurors that are
`disparaging and inflammatory, or intimidating.” Special
`Counsel Mot. 15. After full briefing and a hearing, the district
`court granted in part and denied in part the Special Counsel’s
`motion. Dist. Ct. Order at 1 (“Order”).
`
`The district court first explained that an order restricting
`Mr. Trump’s speech about the District of Columbia or its
`residents was not necessary at that time to protect against
`contaminating the jury pool. Hr’g Tr. 82:24–83:4. Instead, the
`district court held that, on the record before it, any such taint
`could be addressed through rigorous questioning of potential
`jurors before empanelment. Id.
`
`On the other hand, the court found that the former
`President’s speech posed “a significant and immediate risk that
`(1) witnesses will be intimidated or otherwise unduly
`influenced by the prospect of being themselves targeted for
`harassment or threats; and (2) attorneys, public servants, and
`other court staff will themselves become targets for threats and
`harassment.” Order at 2. Invoking both a local rule of criminal
`procedure, see LCrR 57.7(c), and the court’s obligation to “take
`such steps by rule and regulation that will protect [its]
`processes from prejudicial outside interferences[,]” Order at 1
`(quoting Sheppard, 384 U.S. at 363), the district court ordered:
`
`All interested parties in this matter, including the parties
`and their counsel, are prohibited from making any public
`statements, or directing others to make any public
`statements, that target (1) the Special Counsel prosecuting
`this case or his staff; (2) defense counsel or their staff; (3)
`any of this court’s staff or other supporting personnel; or
`
`
`
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`(4) any reasonably foreseeable witness or the substance of
`their testimony.
`
`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.
`
`
`D
`
`The district court administratively stayed the Order while
`
`it considered Mr. Trump’s motion for a stay pending appeal.
`Minute Order of Oct. 20, 2023.
`
`
`Soon thereafter, news broke asserting that Mark Meadows,
`Mr. Trump’s former Chief of Staff, was cooperating with the
`Special Counsel in exchange for immunity. See Katherine
`Faulders, Mike Levine & Alexander Mallin, Ex-Chief of Staff
`Mark Meadows Granted Immunity, Tells Special Counsel He
`Warned Trump About 2020 Claims, ABC NEWS (Oct. 24, 2023,
`6:11 PM).2 Hours later, Mr. Trump asked on social media
`whether Meadows was the type of “weakling[] and coward[]”
`who would “make up some really horrible ‘STUFF’” about Mr.
`Trump in exchange for “IMMUNITY against Prosecution
`
`2 https://perma.cc/VRG2-D6SZ.
`
`
`
`
`
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`(PERSECUTION!) by Deranged Prosecutor, Jack Smith.”
`Special Counsel Resp. in Opp’n to Mot. to Stay 9, ECF 120
`(Oct. 25, 2023) (“Special Counsel Stay Opp’n”).
`
`Five days later, the district court denied Mr. Trump’s
`
`request for a stay pending appeal to this court. Order at 9, ECF
`124 (Oct. 29, 2023). As part of that denial, the district court
`further clarified that the Order’s reach should be read in light
`of the court’s discussions with counsel during the motion
`hearing that led to its issuance. Id. at 5–6.
`
`
`
` E
`
`
` Mr. Trump timely filed an emergency appeal, a motion for
`a stay of the Order, and a request for an expedited appeal. See
`Emergency Mot. For Stay Pending Appeal at 1–2 (Nov. 2,
`2023). The next day, this court administratively stayed the
`Order and, because of the approaching trial date, set a highly
`expedited schedule for the merits appeal. See Per Curiam
`Order (Nov. 3, 2023).
`
`
`
`
`
`
`II
`
`A
`
`We begin with our jurisdiction to hear this interlocutory
`appeal. Congress has generally limited the jurisdiction of
`federal courts of appeals to “final decisions of the district
`courts[.]” 28 U.S.C. § 1291. As a result, a party ordinarily may
`appeal only after the district court has resolved all claims and
`has entered a final judgment fully disposing of the case. Van
`Cauwenberghe v. Biard, 486 U.S. 517, 521–522 (1988);
`
`
`
`
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`Cincinnati Ins. Co. v. All Plumbing, Inc., 812 F.3d 153, 156
`(D.C. Cir. 2016).
`
`One exception to this rule is the collateral-order doctrine,
`under which an interlocutory district court order may be
`appealed if it “(1) conclusively determines the disputed
`question, (2) resolves an important issue completely separate
`from the merits of the action, and (3) is effectively
`unreviewable on appeal from a final judgment.” Ameziane v.
`Obama, 620 F.3d 1, 5 (D.C. Cir. 2010) (citing Will v. Hallock,
`546 U.S. 345, 349 (2006)). In addition, in Mohawk Industries,
`Inc. v. Carpenter, 558 U.S. 100 (2009), the Supreme Court
`underscored that “the class of collaterally appealable orders
`must remain ‘narrow and selective in its membership.’” Id. at
`113 (quoting Will, 546 U.S. at 350). Jurisdiction exists only if
`the type of order at issue categorically satisfies the doctrine’s
`criteria. Id. at 107.
`
`
`Orders restraining parties’ speech during the pendency of
`a criminal case categorically satisfy those criteria.
`
`First, such orders, by their nature, conclusively determine
`whether parties may speak on specified matters pertaining to
`the criminal trial.
`
`Second, such orders determine an important issue separate
`from the merits. A defendant’s ability to speak about his
`criminal
`trial
`is an
`important
`issue given
`the First
`Amendment’s broad protection of free speech and the public
`interest in the transparency of criminal trials and open
`discussion of the trial process. See Sheppard, 384 U.S. at 349–
`350. “[T]he criminal justice system exists in a larger context
`of a government ultimately of the people, who wish to be
`
`
`
`
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`informed about happenings in the criminal justice system, and,
`if sufficiently informed about those happenings, might wish to
`make changes in the system.” Gentile v. State Bar of Nevada,
`501 U.S. 1030, 1070 (1991).
`
`In addition, speech restrictions in criminal trials arise from
`the need to protect the trial process and its truth-finding
`function; assessing their validity does not touch on a
`defendant’s guilt or innocence or any merits issues in the
`underlying case. See United States v. Brown, 218 F.3d 415,
`420 (5th Cir. 2000); In re Rafferty, 864 F.2d 151, 154 (D.C.
`Cir. 1988) (holding that an order restraining a civil plaintiff’s
`ability to disclose information to third persons “is entirely
`independent of the underlying wrongful discharge claim”).
`
`Third, reviewing such orders after final judgment would
`not redress or undo any unconstitutional prohibitions of speech
`that occurred prior to or during trial. The damage to First
`Amendment interests would be done. And an order regulating
`speech prior to and during trial almost always will expire by its
`own terms once final judgment is entered in the criminal case,
`making any attempted appellate review at the end of the case
`moot.
`
`In addition, no alternative mechanism for review would
`suffice. In theory, a party could breach the Order, be held in
`contempt, and then appeal the contempt ruling. But the
`Supreme Court has long held that requiring speakers to violate
`the law before vindicating their right to free speech would
`excessively chill protected speech. See, e.g., Virginia v. Hicks,
`539 U.S. 113, 119 (2003) (“Many persons, rather than
`undertake the considerable burden * * * of vindicating their
`rights through case-by-case litigation, will choose simply to
`
`
`
`
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`abstain from protected speech[.]”); cf. Susan B. Anthony List v.
`Driehaus, 573 U.S. 149, 158–159 (2014) (“[I]t is not necessary
`that petitioner first expose himself to actual arrest or
`prosecution to be entitled to challenge a statute that he claims
`deters the exercise of his constitutional rights[.]”) (quoting
`Steffel v. Thompson, 415 U.S. 452, 459 (1974)).
`
`
`For those reasons, we hold that we have jurisdiction under
`the collateral-order doctrine. See In re Stone, 940 F.3d 1332,
`1340 (D.C. Cir. 2019) (“[O]ur Circuit has long allowed
`nonparties subject to a restrictive order to appeal that order
`under the collateral order doctrine.”); Rafferty, 864 F.2d at
`153–155 (order restraining a civil plaintiff’s ability to disclose
`information to third persons is appealable under the collateral-
`order doctrine); see also Brown, 218 F.3d at 420–422 (speech
`restraint in criminal trial is appealable under the collateral-
`order doctrine); United States v. Ford, 830 F.2d 596, 598 (6th
`Cir. 1987) (same).3
`
`
`B
`
`
`Whether the Order violates the Constitution is a question
`of law subject to de novo review. See United States v. Popa,
`187 F.3d 672, 674 (D.C. Cir. 1999); United States v. Bronstein,
`849 F.3d 1101, 1106 (D.C. Cir. 2017). We review the district
`court’s factual findings for clear error and will overturn them
`only if we are “left with the definite and firm conviction that a
`mistake has been committed.” United States v. Miller, 35 F.4th
`807, 817 (D.C. Cir. 2022) (quoting United States v. United
`
`3 Because the Order is appealable under the collateral-order doctrine,
`we need not address whether the Order is also an appealable
`injunction under 28 U.S.C. § 1292(a)(1), or whether to treat this
`appeal as a petition for writ of mandamus. See Trump Br. 4–6.
`
`
`
`
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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
`
`Two foundational constitutional values intersect in this
`case: an individual’s right to free speech and the fair and
`effective functioning of the criminal trial process and its truth-
`finding function. Because of the constitutional stakes, orders
`restricting a defendant’s speech must be drawn no more
`broadly or narrowly than necessary to ensure the fair
`administration of justice.
`
`
`A
`
`The Right to Free Speech
`
`
`
`Freedom of speech is a bedrock constitutional right.
`Americans are free to speak, listen to others, and make up their
`own minds about their government and the world around them.
`“The First Amendment
`reflects
`‘a profound national
`commitment to the principle that debate on public issues should
`be uninhibited, robust, and wide-open.’” Snyder v. Phelps, 562
`U.S. 443, 452 (2011) (quoting New York Times Co. v. Sullivan,
`376 U.S. 254, 270 (1964)). “That is because ‘speech
`concerning public affairs is more than self-expression; it is the
`essence of self-government.’” Id. (quoting Garrison v.
`Louisiana, 379 U.S. 64, 74–75 (1964)).
`
`Political speech in particular is the lifeblood of American
`democracy. It allows the free exchange of ideas among
`individuals about governance and the political process. Mills
`
`
`
`
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`v. Alabama, 384 U.S. 214, 218–219 (1966). “Whatever
`differences may exist about interpretations of the First
`Amendment, there is practically universal agreement that a
`major purpose of that Amendment was to protect the free
`discussion of governmental affairs.” Id. It also allows voters
`to make informed decisions about those who seek to represent
`them in government, including their character, qualifications,
`and policy platforms. “In a republic where the people are
`sovereign, the ability of the citizenry to make informed choices
`among candidates for office is essential, for the identities of
`those who are elected will inevitably shape the course that we
`follow as a nation.” Buckley v. Valeo, 424 U.S. 1, 14–15
`(1976).
`
`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.
`
`
`Free speech also holds government officials accountable.
`Public criticism and scrutiny of those in power exposes fraud,
`curbs the abuse of power, and roots out corruption. As relevant
`here, speech about judicial proceedings, especially criminal
`prosecutions, promotes transparency in the legal system and
`
`
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`“guards against the miscarriage of justice by subjecting the
`police, prosecutors, and judicial processes to extensive public
`scrutiny and criticism.” Sheppard, 384 U.S. at 350. “The
`judicial system, and in particular our criminal justice courts,
`play a vital part in a democratic state, and the public has a
`legitimate interest in their operations.” Gentile, 501 U.S. at
`1035.
`
`“[T]o provide adequate ‘breathing space’” for robust
`public debate and participation, the First Amendment generally
`shields “insulting, and even outrageous, speech[.]” Snyder,
`562 U.S. at 458 (quoting Boos v. Barry, 485 U.S. 312, 322
`(1988)); cf. Virginia v. Black, 538 U.S. 343, 358 (2003). At the
`same time, certain “historic and traditional categories” of
`speech receive no First Amendment protection, such as
`defamation, incitement, “[t]rue threats of violence,” and
`obscenity. Counterman v. Colorado, 600 U.S. 66, 73–74
`(2023) (quotation marks omitted).
`
`In addition, even protected speech may, and sometimes
`must, be regulated when necessary to protect a compelling
`governmental interest, including the fair administration of a
`criminal trial. See Sheppard, 384 U.S. at 362–363; Cox v.
`Louisiana, 379 U.S. 559, 563–565 (1965) (sustaining
`prohibition on picketing outside a courthouse, even though
`such
`activity
`is
`“intertwined with
`expression
`and
`association[,]” as necessary to protect trials from outside
`influence).
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`B
`
`The Right to a Fair Trial
`
`
`
`The Constitution affords Mr. Trump, like all criminal
`defendants, the “fundamental right to a fair trial.” Strickland
`v. Washington, 466 U.S. 668, 684 (1984). Foundational to our
`constitutional system is the requirement that, before the
`government may deprive a person of liberty, “impartial jurors,
`who know as little as possible of the case,” must decide the
`defendant’s guilt “based on material admitted into evidence
`before them in a court proceeding.” Gentile, 501 U.S. at 1070;
`see Irvin v. Dowd, 366 U.S. 717, 722 (1961). No one should
`be punished for a crime without “a charge fairly made and
`fairly tried in a public tribunal free of prejudice, passion,
`excitement and tyrannical power.” Chambers v. Florida, 309
`U.S. 227, 236–237 (1940).
`
`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).
`
`Accordingly, courts must take steps to protect the integrity
`of the criminal justice process, Sheppard, 384 U.S. at 363,
`giving “[f]reedom of discussion * * * the widest range” that is
`“compatible with the essential requirement of the fair and
`orderly administration of justice.” Pennekamp v. Florida, 328
`U.S. 331, 347 (1946). That standard requires courts to navigate
`
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`a narrow path. The Constitution gives them very limited
`authority to restrict the speech of the press and other outsiders
`to the litigation. Their speech generally may be abridged only
`if it presents a “clear and present danger to the administration
`of justice.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S.
`829, 844 (1978); see Bridges v. California, 314 U.S. 252, 260–
`263 (1941).
`
`In fact, court orders restraining speech about an ongoing
`criminal proceeding are presumptively unconstitutional.
`Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558 (1976). In
`this context, prior restraints can be imposed only if narrowly
`tailored to redress sufficiently serious threats to the criminal
`justice process and if no less restrictive alternatives are
`available. Even then, “there is nothing that proscribes the press
`from reporting events that transpire in the courtroom.”
`Sheppard, 384 U.S. at 362–363; see Craig v. Harney, 331 U.S.
`367, 374 (1947) (“What transpires in the court room is public
`property.”).
`
`
`At the same time, when a case involves extensive media
`coverage and public interest, or when the parties are trying the
`case in the media rather than the courtroom, a court cannot sit
`back and wait for a “carnival atmosphere” to descend before
`acting. Sheppard, 384 U.S. at 356–363. Quite the opposite.
`“[T]he primary constitutional duty of the Judicial Branch [is]
`to do justice in criminal prosecutions[.]” United States v.
`Nixon, 418 U.S. 683, 707 (1974). As part of that duty, courts
`must “prevent the prejudice” to the trial process “at its
`inception.” Sheppard, 384 U.S. at 363; see Nebraska Press,
`427 U.S. at 553 (The cure for prejudice to the trial “lies in those
`remedial measures that will prevent the prejudice at its
`inception.”) (quoting Sheppard, 384 U.S. at 363). That is
`
`
`
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`because waiting until the trial is over and reversing the
`conviction would be an ineffective, costly, and wasteful
`“palliative,” inflicting the additional burdens on a defendant
`and extra expenses on the taxpayers of a retrial in an already
`contaminated public atmosphere, with witness recall and
`evidence growing staler all the while. Sheppard, 384 U.S. at
`363; see Nebraska Press, 427 U.S. at 553.
`
`As a result, courts have an ongoing obligation to ensure
`that speech about a criminal case does not “divert the trial from
`the ‘very purpose of a court system[,]’” which is “‘to adjudicate
`controversies, both criminal and civil, in the calmness and
`solemnity of the courtroom according to legal procedures.’”
`Sheppard, 384 U.S. at 350–351 (quoting Cox, 379 U.S. at 583
`(Black, J., dissenting)). Due process demands that “the
`conclusions to be reached in a case will be induced only by
`evidence and argument in open court, and not by any outside
`influence, whether of private talk or public print.” Id. at 351
`(quoting Patterson v. Colorado ex rel. Attorney General, 205
`U.S. 454, 462 (1907)); see Geders v. United States, 425 U.S.
`80, 86–87 (1976) (“If truth and fairness are not to be sacrificed,
`the
`judge must exert
`substantial control over
`the
`proceedings.”). The courts’ duty to protect trials f
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