From Donald Trump v. Mary Trump, decided yesterday by New York trial court judge Robert Reed:
In this lawsuit, Donald J. Trump … seeks to recover against Mary Trump for the publication of her book, "Too Much and Never Enough: How My Family Created the World's Most Dangerous Man." Mary Trump, the complaint alleges, caused her book to be published in open defiance of confidentiality obligations she owed to plaintiff….
Here's the heart of the free speech analysis:
Defendant … contends that enforcing the confidentiality agreement between the parties would violate vital public interests regarding freedom of speech. In a nutshell, defendant's position is that enforcing a waiver of First Amendment rights for the purpose of insulating a public official from unpleasant attacks will "plainly undermine [a] core First Amendment principle." To further bolster this argument, defendant relies on Justice Greenwald's decision denying plaintiff's brother's request for a preliminary injunction to prevent Mary Trump from publishing her book, in which Justice Greenwald held that the applicable confidentiality provision, "viewed in the context of the current Trump family circumstances," would "offend public policy."
Justice Greenwald's decision, however, centered on a prior restraint analysis, and his holding should be confined to that context. The full text of Judge Greenwald's quote is that the applicable confidentiality provision would "offend public policy as it would be a prior restraint on [defendant's] speech." Justice Greenwald further noted that "the First Amendment requires that [a plaintiff] remedy its harms through damages proceeding rather than through suppression of protected speech." Thus, Justice Greenwald's decision actually affirms the notion that the instant action is the proper manner for plaintiff to enforce the settlement agreement without offending defendant's First Amendment rights.
Indeed, in considering the argument that the enforcement of the settlement agreement necessarily violates Mary Trump's First Amendment rights, then-Presiding Justice Scheinkman of the Appellate Division, Second Department had made the following observations:
"While Ms. Trump unquestionably possesses the same First Amendment expressive rights belonging to all Americans, she also possesses the right to enter into contracts, including the right to contract away her First Amendment rights. Parties are free to limit their First Amendment rights by contract. A court may enforce an agreement preventing disclosure of specific information without violating the restricted party's First Amendment rights if the party received consideration in exchange for the restriction. A party may effectively relinquish First Amendment rights by executing a secrecy agreement in which the party receives significant benefits."
Justice Scheinkman further wrote "Here, the plaintiff has presented evidence that Ms. Trump, in exchange for valuable consideration, voluntarily entered into a settlement agreement to resolve contested litigation." "In that settlement agreement, she agreed not to publish a book concerning the litigation or her relationship with the parties." "The settlement agreement," Justice Scheinkman further noted, "reflects that [Mary] Trump was represented by counsel and, indeed, her counsel themselves also agreed to confidentiality." Thus, as Justice Scheinkman concluded, "The Court perceives it to be reasonable for a well-known and prominent family to collectively agree, as part of the settlement of a highly-publicized internal family dispute, to confidentiality provisions under which all parties agree to maintain family privacy regarding intimate family matters." "Confidentiality agreements," Justice Scheinkman added, in the absence of an injunction, "are alternatively enforceable through the imposition of money damages."
In light of Judge Scheinkman's observations, this court finds that enforcing the settlement agreement is not contrary to public policy as a matter of law. In so doing, the court does not minimize the importance of protecting First Amendment rights, including those of Mary Trump. Rather, the court only recognizes that every person is also free to contractually limit her own First Amendment rights, and that a proper remedy for harm springing from a party's alleged inability to comply with such contract-erected limitation is the imposition of money damages. In this action, plaintiff attempts to do precisely that.
Moreover, it would be unfair—and/or perhaps a bit naive—to portray Mary Trump as merely a whistleblower who sought only to assist a group of journalists in their reporting on a story of significant public interest. Although Mary Trump may have had the noblest intentions, she also proceeded to publish a book in alleged violation of her confidentiality obligations, which purportedly went on to sell millions of copies. Under such circumstances, this court cannot invalidate the agreement on public policy grounds. This is especially true considering that this court has already ruled that the overall settlement agreement itself is enforceable; that Mary Trump received over $2 million dollars in consideration for entering into the agreement; that Mary Trump was represented by sophisticated counsel at the time the terms of the settlement agreement were negotiated; and that defendant's publishing of the book further generated significant profits for her….
For more on the facts and on some contract law arguments, see the full decision. The decision strikes me as quite consistent with First Amendment precedents, such as Cohen v. Cowles Media, Inc. (1991), which do indeed conclude that non-disclosure agreements are generally enforceable. The Court in that case rejected the argument that people have a First Amendment right to engage in "truthful reporting" even if they had promised not to report something: It is not unconstitutional to apply to speakers "a generally applicable law that requires those who make certain kinds of promises to keep them." That principle applies here as well.
I appreciate that this isn't this week's top story regarding Donald Trump and the judicial process, but it's one where I think I can add some value, precisely because (1) this New York decision isn't yet much in the news, and (2) it's within my area of legal expertise. I leave the Trump classified documents indictment to those who actually know something about it.
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