The limits and liberties with respect to President Trump’s speech in South Florida are emerging as the next contest between the 45th president and Special Counsel Jack Smith.

Judge Aileen Cannon could soon decide whether to deny or grant Mr. Smith’s motion to amend the terms of Trump’s release to bar him from criticizing law enforcement. That is the request from the special counsel. Trump maintains that such an order would violate his constitutional rights.

Judge Cannon on Monday barred the request of dozens of Republican attorneys general to intervene on Trump’s behalf in the form of an amicus curiae brief. They sought to impress upon Judge Cannon that Mr. Smith’s request is “presumptively unconstitutional” as a prior restraint on freedom of speech. As nonparties to the case, their participation was at the discretion of Judge Cannon.

The attorneys general could have been encouraged by Judge Cannon’s decision to allow lawyers representing neither party to offer oral arguments this week on the question of whether Mr. Smith is constitutionally appointed. The Supreme Court describes such an occasion as “extraordinary.” 

Trump, though, is not outsourcing his opposition to Mr. Smith’s effort to mute him. The former president in his filing to Judge Cannon calls the motion from the government a “shocking display of overreach and disregard for the Constitution.” His attorneys write that it is “tailor-made to broadly chill protected speech.”

Mr. Smith wants Trump’s liberty to be contingent on abstention from “statements that pose a significant, imminent, and foreseeable danger to law enforcement agents.” He adds that Trump’s “deceptive and inflammatory assertions irresponsibly put a target on the backs of the FBI agents.”  In a fundraising email, Trump said the agency was “locked & loaded ready to take me out” and was “just itching to do the unthinkable” during the search of Mar-a-Lago.

Trump sees the request to amend the conditions of his release as  a “naked effort to impose totalitarian censorship of core political speech, under threat of incarceration, in a clear attempt to silence” the presumptive Republican nominee for president. He also notes that Mr. Smith has “not submitted to the Court any evidence of threats or harassment” resulting from Trump’s speech.

The Supreme Court, in Nebraska Press Association v. Stuart, held that prior restraints on speech — like the one Mr. Smith seeks here, and like the ones Judges Juan Merchan and Tanya Chutkan have imposed at Manhattan and the District of Columbia — “are the most serious and the least tolerable infringement on First Amendment rights.” The justices also called prior restraint “one of the most extraordinary remedies known to our jurisprudence.” A New York appeals court on Tuesday kept Judge Merchan’s order undisturbed.

Trump calls Mr. Smith a “surrogate for President Biden,” an appellation that has become more frequent in his filings as of late. The 45th president, who seeks to become the 47th by defeating the 46th, also centers the political calendar in his effort to fend off restrictions on his speech, which he asserts “strikes at the First Amendment’s heart.”   

Trump argues that the political calendar is relevant. He asks, “Who would decide whether a statement by President Trump during the June 27, 2024 presidential debate, or during the Republican National Convention,” ran afoul of the hypothetical gag order that Mr. Smith is seeking. The special counsel reminds Judge Cannon that the order governing the use of force during the search at Mar-a-Lago was standard operating procedure.

If Judge Cannon declines to accede to Mr. Smith’s request to amend the terms of Trump’s release, the special counsel can immediately appeal that decision to the United States Court of Appeals for the 11th Circuit. The appellate riders have overruled Judge Cannon before, when she appointed a special master. They could yet do so again on the matter of Trump’s speech.