Robert S. Trump, Donald’s brother, is suing Mary L. Trump, his niece, and her publisher, Simon & Schuster, to halt publication of her tell-all book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.
This is Robert’s second attempt to stop the book. Last week, he sued Mary in the wrong court, which dismissed his case (Decision and Order of the Court, PDF). A day later, Robert filed the case in the Supreme Court of Dutchess County, New York, where he lives.
Robert Trump alleges that his niece violated a confidentiality provision she signed in 2001 to settle a legal dispute over her grandfather’s will. According to legal documents (Petition in first attempt, PDF), the agreement states:
Mary L. Trump (and others) “shall not disclose any of the terms of this Agreement and Stipulation, and in addition shall not directly or indirectly publish or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalized or not, concerning their litigation or relationship with the Proponents/Defendants [Donald J. Trump, Robert S. Trump, and Maryanne Trump Barry]
The confidentiality/nondisclosure provision is mutual, meaning that Donald, Robert, and Maryanne agreed to never disclose information about the litigation or their relationship with their niece/plaintiffs. The agreement allows disclosures if the opposing parties consent to it.
It is an agreement between private parties, but there are First Amendment implications when private individuals or entities seek court enforcement of their contracts, and of course, the agreement involves someone who is now President of the United States. Could Mary Trump defend herself successfully in this lawsuit by arguing that the nondisclosure provision is void because it is an unenforceable waiver of her First Amendment rights?
A similar argument prevailed in Overbey v. Mayor of Baltimore, 930 F.3d 215 (4th Cir. 2019). In that case, a woman sued three police officers alleging that she had “beaten, tased, verbally abused, and needlessly arrested her in her own home after she called 911 to report a burglary.” Id. at 220. It was yet another case of police misconduct targeting Black people in their own homes, and one of many cases the city tried to keep hidden from the public by including a “gag order” in the settlement agreement.
But the 4th Circuit invalidated the gag order (a nondisparagement clause that functioned like a nondisclosure agreement), finding that (1) the clause operated as a waiver of Ms. Overbey’s First Amendment rights and (2) public policy arguments weighed against enforcing it.* These public policies included:
- “A profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open…” Id. at 223-4 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); and
- The national “mistrust of governmental power…” when the government has “used its power [] to curb speech that is not to its liking.” id. at 224.
These policies outweighed the policies in favor of enforcing the provision, such as preserving silence “as a bargaining chip during settlement negotiations,” id. at 225, and the three officers’ interests in potentially “clearing their names” (which the Court pointed out would not be affected by enforcement of the non-disparagement clause). Id. at 225-6.
The Overbey case and the Trump case both involve gag orders in settlement agreements, but unlike the situation in Overbey, the Trump agreement happened between private parties–so the government did not use its power achieve a settlement that would curb speech it did not like–and according to the book’s promotional materials, it involves stories about family life, which is separate from the public sphere.
But now, nearly two decades after the agreement was signed, one of the people who benefits from its enforcement is the President of the United States. He is running for office again, and he and his siblings are able to use this 19-year-old provision to suppress the speech they don’t want while consenting to the speech that they do. Whether or not the Trump siblings like the content of Mary’s speech, what she has to say is a matter of public importance. It might even be political speech, which receives the highest level of protection under the First Amendment.
At this point, I hesitate to say that political figures (or those acting in their interests) can never enforce nondisclosure and nondisparagement clauses in otherwise private contracts. However, if there’s any position of such importance that virtually all speech related to it should be protected from censorship, it’s the President of the United States, particularly in an election year.
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*Ms. Overbey was joined in the lawsuit by a local news website, which argued that the city’s policy of including gag orders in settlement agreements violated its First Amendment interest in newsgathering.
The Misfortune Of Knowing 
Reblogged this on The Misfortune Of Knowing and commented:
A New York judge has stopped the publication of Mary L. Trump’s tell-all book about Donald Trump at least temporarily (See TRO, PDF). On July 10, the parties will argue about whether the injunction should be permanent.
As I discussed in the post below, Mary Trump signed a nondisclosure agreement in a settlement involving several of her family members, including Donald Trump. The question here is whether contract principles or free speech principles will prevail. On the one hand, Mary Trump gave away her right to speak about her family in exchange for the settlement (presumably knowingly and voluntarily). On the other, the nondisclosure provision may be an unenforceable waiver of her First Amendment rights. There is also Simon & Schuster’s right to publish information relevant to the public debate related to an upcoming election.
I believe the public has a right to know Mary Trump has to say, but we’ll see if the court agrees.
I love following these legal posts, but then I stupidly ask my co-worker, who used to be a lawyer, questions and she doesn’t know because I’m ignorant enough to think all lawyers study and learn the same specialty! 😂
Thank you for your posts explaining how the law in the US applies to these publishing contracts – very interesting to me as a person outside the US, because I really have no idea how NDAs work there (and even here I only know as they specifically apply to e.g. not sharing commercially sensitive information outside of work).
I hope the book is released. I don’t plan to read it–I already know more than I want to about the kind of person Trump is–but it would be good to get it out there for those who are still on the fence.