The American Civil Liberties Union, defender of the rights of communists and Nazis, has just this week fetched up in court to defend the free speech rights of President Trump. Welcome to the fight, we say. It’s opposing the gag order that the special counsel, Jack Smith, has wangled out of Judge Tanya Chutkan of the United States district court for the District of Columbia but that has been paused during an appeal.

Nice to see the ACLU on this constitutional barricade. Politics might make strange bedfellows, but it’s hard to think of bedfellows stranger than Mr. Trump and the ACLU. The Union, once known as a free speech stalwart, has been noted since the Battle of Vietnam as a partisan of left-wing causes. Yet the organization, recalling its neglected inheritance, has rallied to oppose Mr. Smith’s efforts to impose on Mr. Trump a gag order, meaning, a prior restraint. 

We can remember a time when the bien pensant liberals were all against prior restraint. So were — and are — we. Then again, too, since President Trump landed in the dock, the liberals have raised hardly a peep when two prior restraints are slapped on an erstwhile American president. Not only the one in Columbia District but also the one in New York state court, which had a particularly dramatic moment this week.  

That came in the civil trial in which Mr. Trump has already been judged liable for fraud. The presiding judge, Arthur Engoron, on Wednesday slapped him with a staggering fine — 10,000 spondulix — pronouncing, “As the trier of fact, I find that the witness is not credible.” It was a shocking thing to see in an American courtroom, a judge placing the burden of proof on the defendant rather than the prosecution. Not a whisper of protest from the usual suspects. 

Which underscores the significance of the move by the ACLU. In an amicus brief in Judge Chutkan’s case the ACLU champions the “need to apply the most stringent First Amendment standard to a restraint” on Mr. Trump’s “speech rights.” Their lawyers agree with Mr. Trump’s counsel that the former president’s ability to discuss his case is “in many ways inextricable from the 2024 presidential campaign in which he is a declared candidate.”

This is quite a volte face for the ACLU, whose website notes that the group “promised to see Trump in court because America is worth fighting for, and we have: 400 times.” Now, it appears that they are in the throes of a constitutional conversion, one that comes as Mr. Smith filed this week a motion for an even more restrictive order. We doubt the ACLU attorneys will vote for Mr. Trump, but he could be emerging as the free speech candidate.

We mark the point not because we carry a brief for Mr. Trump. The worst mistake the prosecution could make, though, would be to win a guilty verdict on a nickel-plated, monkey-with-a-parasol version of due process. It was Benj. Franklin who reckoned that “it is better 100 guilty Persons should escape than that one innocent Person should suffer.” It would be no small thing were the prosecution to gain a victory in court but lose on the hustings.