A few days ago, a New York state court ruled in favor of Mary Trump and Simon & Schuster, allowing them to publish Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man, a tell-all memoir billed as an “authoritative portrait of Donald J. Trump and the toxic family that made him.” (Opinion, PDF).
Robert Trump tried to stop publication of the book by filing a lawsuit claiming that Mary’s book violates a decades-old confidentiality agreement that was part of a settlement with her father’s siblings, including Robert and Donald Trump, over an estate dispute.
In Monday’s decision, the Court decided that Robert was not entitled to a preliminary injunction because he did not show that he was likely to succeed on the merits, that he would suffer irreparable injury without the injunction, or that the balancing of equities weighed in his favor—all three of which he needed to show to prevail.
Robert also had not shown that the confidentiality agreement between Mary and her father’s siblings applied to Simon and Schuster. As for Mary Trump, the Court noted her First Amendment defenses, stating:
As can be seen by the instant proceeding, a question to be answered is whether the confidentiality clauses in the 2001 Agreement, viewed in the context of the current Trump family circumstances in 2020, would “…offend public policy as a prior restraint on protected speech…”. Yes, it should, as it would be a prior restraint on speech. (page 17).
Plus, what good would it do to enjoin the book now? According to the opinion, “Notwithstanding that the Book has been published and distributed in great quantities, to enjoin Mary L. Trump at this juncture would be incorrect and serve no purpose. It would be moot.”
The Court focused on the fact that Robert is not Donald, asking at one point, “What standing does Robert S. Trump have to act on his brother’s behalf, if that is how he is approaching this lawsuit. Who really stands to “lose” (or gain?), if the Book continues to be published and distributed as it is claimed by S&S? Is it plaintiff?”
Based on the promotional materials and the cover, Mary’s book is primarily about Donald Trump, the current President of the United States, but he isn’t the plaintiff. Robert is, and it’s unclear how he would be harmed by Mary’s book. What’s more likely is that the public would suffer if the court prohibited the book because we have a right to know information about matters of public concern. As I’ve said before, “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.”
I also said that “the question here is whether contract principles or free speech principles will prevail.”
The Court’s answer is clear: “Lastly, in the vernacular of First year law students, ‘Con. Law trumps Contracts.’”
The Misfortune Of Knowing 