V
A
While the district court had the authority to issue an order restraining trial participants’ speech, and no less restrictive alternative would suffice, the Order is not narrowly tailored to maximize the amount of protected speech allowed while still averting the “substantive evil of unfair administration of justice[.]” Landmark Commc’ns, 435 U.S. at 844 (quoting Bridges, 314 U.S. at 271); see Gentile, 501 U.S. at 1076.
In so holding, we fully credit the district court’s care and efforts while handling this complex case to bring the Order within First Amendment bounds. See, e.g., Hr’g Tr. 84:18–22 (stating that “Mr. Trump may still vigorously seek public support as a presidential candidate, debate policies and people related to that candidacy, criticize the current administration, and assert his belief that this prosecution is politically motivated”); Dist. Ct. Stay Order at 5 (explaining that the Order covers only those “kinds of ‘targeting’ statements that could result in ‘significant and immediate’ risks’ to ‘the integrity of these proceedings’”) (quoting Order at 2). But in our view, the Constitution requires some narrowing of the Order’s reach.
By way of reminder, the Order provides:
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 (4) any reasonably foreseeable witness or the substance of their testimony.
Order at 3. The Order then adds that it “shall not be construed” to prohibit Mr. Trump from making statements that (1) “criticiz[e] the government generally, including the current administration or the Department of Justice”; (2) “assert[] that Defendant is innocent of the charges against him, or that his prosecution is politically motivated”; or (3) “criticiz[e] the campaign platforms or policies of Defendant’s * * * political rivals, such as former Vice President Pence.” Order at 3.
1
The district court’s ban on speech that “targets” witnesses and trial personnel reaches too far. The ordinary meaning of statements that “target” a person is statements aimed at or directed toward a person or entity. See, e.g., OXFORD ENGLISH DICTIONARY (2d ed. 1989) (def. 5) (“[t]o aim * * * at a target”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2341 (1993) (defs. 1a, 4) (“to make a target of” or “to direct toward a target”).
By broadly proscribing any statements about or directed to the Special Counsel and the court’s and counsel’s staffs, as well as reasonably foreseeable witnesses or their testimony, the Order sweeps too broadly. It captures some constitutionally protected speech that lacks the features or content that would trench upon the court’s proper functioning or ability to administer justice. Under the Order, Mr. Trump could not, for example, say that a former government official and potential witness is a “liar,” or that the Special Counsel is a “Trump hater.” See Oral Arg. Tr. 114:25–116:22 (Special Counsel arguing that the Order as drafted permits Mr. Trump to call another’s statements untrue, but not to call the speaker a “liar”). Nor could Mr. Trump express his opinion that the staff, in general, at the courthouse has been “terrific” and “helpful,” or, conversely, “hard to work with.”
Mr. Trump, it bears noting, is simultaneously a criminal defendant and a political candidate for the Republican presidential nomination. Under the court’s Order, his opponents could without restriction wield the indictment and evidence in the case to demonstrate his unfitness for office. Yet the Order would allow Mr. Trump to respond only by “asserting that [he] is innocent of the charges,” and then changing the subject to his rival’s “campaign platform[] or policies[.]” Order at 3. Permitting Mr. Trump to answer such political attacks with only an anodyne “I beg to differ” would unfairly skew the political debate while not materially enhancing the court’s fundamental ability to conduct the trial.
In addition, the indictment against Mr. Trump refers to statements or actions by the former Vice President, the former Chairman of the Joint Chiefs of Staff, “other senior national security advisors,” the former White House Chief of Staff, other senior White House officials, and multiple United States Senators and Representatives. Indictment ¶¶ 83–120. Certainly, some of those figures are known or reasonably foreseeable witnesses in the case. As Mr. Trump points out, some of those same individuals also have written books about their work in his administration and have given interviews that Mr. Trump views as unfavorable. Trump Resp. Opp. Prosecution’s Mot. for Prior Restraints 10 n.7, ECF 60 (Sept. 25, 2023). Mr. Trump has a First Amendment interest in publicly debating those individuals’ commentaries in a way that is independent of and disassociated from any role they might have in the trial. [????!!!!] See Brown, 456 U.S. at 53. Yet the Order would proscribe such speech because it would speak about someone who is a reasonably foreseeable witness, even if Mr. Trump’s speech would have nothing to do with their witness role or the possible content of any testimony.
The interest in protecting witnesses from intimidation and harassment is doubtless compelling, but a broad prohibition on speech that is disconnected from an individual’s witness role is not necessary to protect that interest, at least on the current record. Indeed, public exchanges of views with a reasonably foreseeable witness about the contents of his forthcoming book are unlikely to intimidate that witness or other potential witnesses weighing whether to come forward or to testify truthfully.
In so holding, we underscore a critical consideration: The only rationale invoked by the district court for its Order as to witnesses is their willingness to come forward and to provide evidence truthfully. Order at 2. Yet commonly, one of the most powerful interests supporting broad prohibitions on trial participants’ speech is to avoid contamination of the jury pool, to protect the impartiality of the jury once selected, to confine the evidentiary record before the jury to the courtroom, and to prevent intrusion on the jury’s deliberations. See Russell, 726 F.2d at 1009–1010; United States v. Tijerina, 412 F.2d 661, 666–667 (10th Cir. 1969); see also Sheppard, 384 U.S. at 358– 361 (emphasizing a trial court’s responsibility “to protect the jury from outside influence[,]” including through regulating the speech of parties). Since unrestricted speech by those involved in a trial may prejudice actual or potential jurors in ways that are difficult to remedy, courts have reasonable leeway to regulate those participants’ speech. Gentile, 501 U.S. at 1075– 1076; Sheppard, 384 U.S. at 362–363.
Here, however, the district court based the Order exclusively on the risks of influencing witnesses and intimidating or harassing other trial participants, and not on the need to ensure jury impartiality or to protect the jury from outside influence. Order at 2–3. So our holding addresses only the first two interests as a basis for the Order.18
2
Following Mr. Trump’s motion to stay the Order, the district court clarified that it meant its Order to cover only those “kinds of ‘targeting’ statements that could result in ‘significant and immediate risk[s]’ to ‘the integrity of these proceedings[,]’” Dist. Ct. Stay Order at 5 (quoting Order at 2), specifying that “[t]he motion hearing and corresponding Order provide substantial context for and examples of” prohibited statements, id. at 5–6.
The problem is that the discussions and debates within the hearing transcript do not meaningfully narrow the Order’s overbreadth. In its order denying a stay pending appeal, the district court highlighted hypothetical examples offered during the hearing of “‘targeting’ statements that could result in ‘significant and immediate risk[s]’ to ‘the integrity of these proceedings.’” Dist. Ct. Stay Order at 5 (emphasis added) (quoting Order at 2); see Dist. Ct. Stay Order at 5–6. The court then offered two examples of former President Trump’s prior statements to illustrate the meaning of the word “target.” Dist. Ct. Stay Order at 6–7. But the only example given of a prior statement that would not violate the Order was:
Does anyone notice that the Election Rigging Biden Administration never goes after the Riggers, but only after those that want to catch and expose the Rigging dogs. Massive information and 100% evidence will be made available during the Corrupt Trials started by our Political Opponent. We will never let 2020 happen again. Look at the result, OUR COUNTRY IS BEING DESTROYED. MAGA!!!
Dist. Ct. Stay Order at 6.
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 would not constitute forbidden targeting, the transcript does not meaningfully narrow the Order’s operative language in a way that accommodates both the weighty free speech interests and the compelling judicial interests at stake.
For those reasons, we hold that the Order is not sufficiently narrowly tailored and so can be upheld only in part, as explained below.
B
Rather than prohibiting speech that “target[s]” known or reasonably foreseeable witnesses, the Order must focus more directly and narrowly on comments that speak to or are about those persons’ potential participation in the investigation or in this criminal proceeding. That allows the former President to continue to speak out about those same persons’ books, articles, editorials, interviews, or political campaigns as long as he does so in a manner that does not concern their roles as witnesses or the content of any expected testimony. For those witnesses who previously served or are currently serving in high-level government positions, narrowing language would also allow the former President to voice his opinions about how they performed their public duties, wholly separate from their roles as potential witnesses. Such speech about the roles of high-ranking public officials in the conduct of “governmental affairs” constitutes core political speech entitled to the strongest form of First Amendment protection. Mills, 384 U.S. at 218–219. And because such statements would not concern the persons’ potential participation in the investigation or in this criminal proceeding, the “magnitude” and “likelihood” of the danger posed to the proceeding is lower. See Landmark Commc’ns, 435 U.S. at 843.
By contrast, Mr. Trump’s interest in commenting publicly on a potential witness’s decision to participate in the criminal investigation, choice to cooperate with either party, or expected testimony encroaches on the weighty public interest in the fair administration of criminal justice. “Trial by newspaper”—or, nowadays, social media—can pose a significant and imminent danger to the fair and proper functioning of the judicial process and its truth-finding function. Pennekamp, 328 U.S. at 359 (Frankfurter, J., concurring). The unique megaphone a defendant wields, amplified by social media, ramps up the risk of public and press reactions and attention capable of altering or swaying witnesses’ participation in the trial or the content of their testimony. The risk is particularly significant that public statements about certain witnesses’ involvement in the case may intimidate other potential witnesses from providing testimony, encourage them to alter their testimony, or dissuade them from cooperating with investigators. In addition, a prohibition on speech concerning witnesses’ participation in this case reinforces Mr. Trump’s condition of release forbidding him to “communicate about the facts of this case with any individual known to [Mr. Trump] to be a witness, except through counsel or in the presence of counsel.” Order Setting Conditions of Release 3.
Importantly, an order restricting communications concerning individuals’ roles as witnesses in a criminal proceeding does not close the door to such speech. It instead relocates such commentary to the courtroom, where the content and credibility of witnesses can be challenged through the time-tested crucible of examination and cross-examination “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)). After all, “[l]egal trials 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).
In short, requiring a nexus between Mr. Trump’s speech and a witness’s potential participation in the criminal proceeding affords “freedom of discussion * * * the widest range” that is “compatible with the essential requirement of the fair and orderly administration of justice.” Pennekamp, 328 U.S. at 347. Given the trial court’s latitude to “adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence,” an order that prohibits participants from engaging in speech concerning reasonably foreseeable witnesses’ potential participation in the investigation or in this criminal proceeding would be “narrowly drawn” toward protecting “the integrity of the criminal process.” Cox, 379 U.S. at 562.19
When the Supreme Court has spoken of courts’ authority to restrict trial participants’ speech, it has framed those restrictions in the context of speech about the case in which the restrictions are imposed. See Sheppard, 384 U.S. at 361 (discussing a court’s authority to “proscribe[] extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the * * * the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case”) (emphases added); Gentile, 501 U.S. at 1076 (acknowledging the State’s legitimate interest in prohibiting attorney “speech having a substantial likelihood of materially prejudicing that proceeding”); id. at 1074 (reasoning that lawyers’ “extrajudicial statements” about the case “pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative” in light of lawyers’ “special access to information [about the case] through discovery and client communications”).
To be clear, narrowing the Order’s reach to statements concerning reasonably foreseeable witnesses’ potential participation in the investigation or in this criminal proceeding does not require that the statements facially refer to the person’s potential status as a witness or to expected testimony. Context matters. The statement that a potential witness “is a liar” might well concern that person’s testimony if made on the eve of trial or immediately following news reports that the person is cooperating with investigators. The same words might not concern that person’s status as a witness if uttered immediately after and in response to the release of that person’s book or media interview unrelated to this court proceeding.
Similarly, when Mr. Trump makes comments about a high-profile figure, context will shed critical light on whether that speech concerned other aspects of that person’s public life or her testimonial intentions. By the same token, were Mr. Trump to make public statements about a poll worker whose name he would not know but for that worker’s anticipated participation in this case, determining that the statements concerned that person in their capacity as a potential witness will be more straightforward. This would be true whether or not the statements on their face mention the witness’s anticipated testimony. [????!!!!]
Two posts help illustrate the requisite nexus between Mr. Trump’s statements and a foreseeable witness’s potential participation in the criminal proceeding. Shortly after former Attorney General William Barr gave a televised interview, Mr. Trump posted a video on his social media account in which he said: “Why does Fox News constantly put on slow-thinking and lethargic Bill Barr, who didn’t have the courage or stamina to fight the radical left lunatics while he was the Attorney General of the United States, and who even more importantly refused to fight election fraud, of which there was much?” Special Counsel Mot. 11 n.20. That statement’s criticisms of Barr’s actions in the aftermath of the 2020 election do not concern any role he may have as a witness in this criminal proceeding.
On the other hand, hours after news broke asserting that former Chief of Staff Mark Meadows was cooperating with the Special Counsel, 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 (PERSECUTION!) by Deranged Prosecutor, Jack Smith.” Special Counsel Mot. Reply 9. That statement, considering both its timing and its content, concerns Meadows’s potential cooperation with the prosecution and his potential testimony against Mr. Trump and so is properly proscribed.
There no doubt will be some close cases in which it will be difficult to determine whether a statement concerns a foreseeable witness’s potential participation in the investigation or in this criminal proceeding. But resolving such factual disputes falls well within the district court’s wheelhouse.
Mr. Trump argues that the Order’s reference to “reasonably foreseeable witnesses” and to the substance of their potential testimony is unconstitutionally vague. Trump Br. 53–54. That is incorrect.
A legal rule is not unconstitutionally vague so long as it gives “sufficient warning” that persons can conform their conduct to the law and “avoid that which is forbidden.” United States v. Bronstein, 849 F.3d 1101, 1106–1107 (D.C. Cir. 2017) (quoting Rose v. Locke, 423 U.S. 48, 50 (1975)). The indictment paints a reasonably clear picture of the primary participants in this case, Indictment ¶¶ 83–120, and ongoing discovery will provide further clarity, see United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996) (holding that a witness was “foreseeable” to the defendant because the defendant had prior dealings with the witness related to the case); cf. Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (“[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”); Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (“Condemned to the use of words, we can never expect mathematical certainty from our language.”).
In short, the Order’s effort to protect witnesses is permissible as modified to prohibit only those statements that concern reasonably foreseeable witnesses’ potential participation in the investigation or in this criminal proceeding. Whether a statement about a reasonably foreseeable witness concerns her potential participation in the investigation or in this criminal proceeding must be determined by reference to the statement’s full context.
C
As for the protection of counsel and staff working on the case, the Order requires some recalibration to sufficiently accommodate free speech.
We start by noting the obvious. This criminal proceeding places significant demands on all counsel, the defendant, and court and counsel staff. The case, which is the object of enormous public and press attention, is just a few months from trial and involves 47,000 pages of key documents and hundreds of potentially relevant witnesses. Pretrial briefing alone has been voluminous, with four separate motions to dismiss the indictment on various grounds, in addition to ten other substantive motions.
Some statements concerning counsel or staff working on this case, or their family members, are highly likely to trigger a barrage of threats, intimidation, or harassment that pose an imminent risk of materially interfering with the work of counsel and court personnel as they labor to fairly and orderly adjudicate this complex criminal proceeding. In view of the demands on counsel and court personnel, and the “significant and immediate risk that * * * attorneys, public servants, and 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.
At the same time, speech about the criminal justice system is vital. The courts are the people’s Third Branch of government and, especially in criminal cases, “play a vital part in a democratic state[.]” Gentile, 501 U.S. at 1035. As a result, the public has a strong and “legitimate interest in their operations.” Id. That interest is magnified in criminal cases, where public scrutiny promotes transparency, accountability, and integrity. “[ i]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980). Allowing robust speech can “guard[] 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.
As written, the Order prohibits interested parties from making or directing others to make any public statements that target—that are directed to or aimed at—prosecutors or court staff. Order at 3. That goes too far. Prosecutors are vested with immense authority and discretion, including the power to take steps that can result in persons’ loss of liberty. The public has a weighty interest in ensuring that such power is exercised responsibly. And criminal defendants facing potential curtailments of liberty have especially strong interests in commenting, within reasonable bounds, on prosecutors’ use of their power.
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.
For similar reasons, the Order should not have restricted speech about the Special Counsel himself.The Order already exempts speech about the Department of Justice as an institution. See Order at 3. As conceded at oral argument, “the Special Counsel himself is * * * both an individual trial participant and a representative of the institution”—that is, the Department of Justice’s Office of Special Counsel. Oral Arg. Tr. 99:6–8; see Special Counsel Jack Smith Announces a New Trump Indictment, C-SPAN (Aug. 1, 2023) (Special Counsel’s public announcement of the indictment in this case).20 As a high-ranking government official who exercises ultimate control over the conduct of this prosecution, the Special Counsel is no more entitled to protection from lawful public criticism than is the institution he represents. [???] See Landmark Commc’ns, 435 U.S. at 839 (quoting Bridges, 314 U.S. at 289 (Frankfurter, J., dissenting)).
As for other counsel in this case and the court’s and counsel’s staffs, we hold that adding a mens rea requirement will appropriately balance the court’s institutional interests and the free speech values at stake. As a general rule, state-of-mind requirements “lessen[] the hazard of self-censorship” and “provide[] breathing room” for speech. Counterman, 600 U.S. at 75 (formatting modified). In this case, the requirement affords “strategic protection” to Mr. Trump’s speech by guarding against the prospect of chilling speech that poses an immaterial risk to the criminal proceedings. Id. (quotation marks omitted).21
At the same time, state-of-mind requirements allow vindication of the compelling judicial interest in ensuring that speech by trial participants does not obstruct or delay the criminal proceeding. Here, the district court found, and the record demonstrates, that there is a “significant and immediate risk that * * * attorneys, public servants, and other court staff will themselves become targets for threats and harassment” because of Mr. Trump’s speech. Order at 2. Threats of physical harm, stalking, or doxing almost inevitably will slow or temporarily halt work on the criminal proceeding as personnel are distracted addressing threats to their or their families’ safety, or to the security of courthouse and office premises.
We hold that the district court appropriately restricted speech concerning counsel and staff members, or their family members, to the extent it is made with either the intent to materially interfere with their work or the knowledge that such interference is highly likely to result. By requiring at least knowledge of a high likelihood of interference, we make clear that it is not enough that Mr. Trump has “done more than make a bad mistake.” See Counterman, 600 U.S. at 80. He must fairly bear responsibility for the known consequences of his actions. See id.; see also id. at 78–79 (describing mens rea standards). That restriction also best accounts for the competing interests in effective functioning of the judicial, prosecutorial, and defense processes and the substantial First Amendment interests in speech about how governmental authority and positions of prominent responsibility in the criminal case are used.
Furthermore, by requiring that the interference be material, we make clear that statements including or leading to intemperate and rude remarks—without more—are not proscribed. Working in the criminal justice sphere fairly requires some thick skin. At the same time, the requirement of materiality ensures, for example, that words objectively threatening imminent physical harm—whether the covered person utters such words directly or speaks with the requisite knowledge or intent that such threats are highly likely to occur—are proscribed. Words inducing mass robo-calling, doxing, or true threats being called into offices or the courthouse would also be proscribed. These are the types of material interference that would obstruct a reasonable person’s performance of their duties, and the type of threats that have resulted from some of Mr. Trump’s prior statements, as demonstrated by the record. See Section IV.B.1, supra. The First Amendment does not empower a criminal defendant or other trial participants to engage in speech intended to delay or obstruct the justice process or with the knowledge that such interference is highly likely to result.
Adding proof of state of mind “no doubt[] has a cost: Even as it lessens chill of protected speech,” it makes enforcing the Order harder. Counterman, 600 U.S. at 78. But that tradeoff is necessary here to protect against the “substantive evil of unfair administration of justice[,]” while allowing as much speech as is consistent with that protective barrier. Landmark Commc’ns, 435 U.S. at 844. Furthermore, the relevant mental states can commonly be proved with objective evidence. See Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J., concurring) (“Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds.”); United States v. Mejia, 597 F.3d 1329, 1341 (D.C. Cir. 2010) (A fact finder may infer that “a person intends the natural and probable consequences of acts knowingly done[.]”).
... Mr. Trump argues that actual harm or obstruction to witnesses or the judicial process and its participants must already have occurred before his speech can be regulated.... The Supreme Court has said otherwise. Both Nebraska Press (which Mr. Trump embraces) and Sheppard commanded trial courts that they “must” prevent such harms at their “inception,” before they are realized and dysfunction envelops the trial....
That makes sense. No one is entitled to one free bite at derailing witness testimony or impeding the trial court’s ability to function. A rule that courts are helpless to act until witnesses have been intimidated, violence has been attempted, or a trial participant has been materially hindered from doing her job would “gravely impair the basic function of the courts” in the “fair administration of criminal justice.”...
Nor are the court’s hands tied until evidence of direct causation materializes. Such proof would be hard to come by, and requiring a court to conduct a mini-trial on that inquiry while readying a high-profile case for trial would itself divert and delay the criminal justice process. That presumably is why the Supreme Court recognized in Nebraska Press that the trial court’s assessment of the threat to the court’s functioning must be “of necessity speculative, dealing * * * with factors unknown and unknowable[,]” and may appropriately be grounded both in record facts and “common human experience.”
As with its assessment of statements concerning witnesses, the district court’s consideration of speech about other trial participants should account for context, including such factors as the statement’s phrasing, timing, setting, and meaning. And we leave it open to the district court, with her broad authority to manage and conduct this complex and high-profile trial, to decide whether additional restrictions are needed on speech about counsel or about staff as the trial date draws nearer or circumstances change.
Finally, Mr. Trump argues that the Order’s application to “[a]ll interested parties in this matter,” Order at 3, is unconstitutionally vague, see Trump Br. 52–53. The district court clarified that “interested party” means only “the parties and their counsel.” Dist. Ct. Stay Order at 5. In affirming the Order in part, we read it with that clarification, which moots the vagueness challenge.
VI
For the foregoing reasons, we hold that some aspects of the defendant’s speech pose a significant and imminent risk to the fair and orderly adjudication of this criminal proceeding, which justified protective action by the district court. We affirm in part and vacate in part the district court’s Order to best accommodate the competing constitutional interests at stake, as required by Landmark Communications.
Specifically, we affirm the Order 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. The administrative stay issued by this court on November 3, 2023, is hereby dissolved.
As should be clear, but to avoid any potential doubt, as affirmed in part and vacated in part, the Order also leaves open the categories of speech the district court explicitly stated were permissible under its initial ruling. See Order at 3. Mr. Trump is free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he is innocent of the charges against him. See id.
We do not allow such an order lightly. Mr. Trump is a former President and current candidate for the presidency, and there is a strong public interest in what he has to say. But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means.
So ordered.
_______________
Notes:
1 https://www.c-span.org/video/?506975-1/ ... mp-stateme nt-2020-election-results.
2 https://perma.cc/VRG2-D6SZ.
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.
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 Amendment. Id. at 1076, 1078 (Rehnquist, C.J.). Justice O’Connor joined Chief Justice Rehnquist’s opinion holding that the rule comported with the First Amendment, while agreeing with Justice Kennedy that it was impermissibly vague. Id. at 1082–1083 (O’Connor, J., concurring).
5 https://perma.cc/V6VH-Q3TV.
6 https://perma.cc/XHQ3-4UP7.
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.
8 https://perma.cc/PMD6-BUDX; https://perma.cc/9VR2-HZGK; Hr’g Tr. 55:16–22.
9 https://perma.cc/ZK9H-8SKS.
10 https://perma.cc/9DFD-A7QP.
11 https://perma.cc/F769-Z49A.
12 https://perma.cc/HC5Y-3XLT.
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.
15 https://perma.cc/K3UM-SS92 (displaying 6.51 million followers).
16 https://perma.cc/HC5Y-3XLT.
17 https://perma.cc/P5HK-7LAG.
18 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.
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”).
20 https://www.c-span.org/video/?529681-1/ ... el-jack-sm ith-announces-trump-indictment; https://www.c-span.org/video/?52 8657-1/special-counsel-jack-smith-statement-indictment-donald-tru mp.
21 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.