Donald Trump has long revealed himself to be a bully, one who punches down yet screams bloody murder when someone else so much as taps him. Nowhere is this trait more manifest than in his free speech hypocrisy. Throughout his political campaigns and his presidency, Trump has routinely decried the scourge of “political correctness,” slammed the weakness of “snowflakes” who can’t handle his “telling it like it is,” and demanded the right to publish factual misstatements without correction on private social media platforms. Yet Trump has wielded the extraordinary powers and privileges of the presidency—using everything from the presidential bully pulpit to the classification system to his leverage over executive branch personnel—to threaten, intimidate, and punish those whose words embarrass or anger him.
Lest the advantages of his office not fully protect him from unwelcome speech, Trump also continues to employ a technique that he has long used in his private life, his business life, and his political life: contracts featuring nondisclosure and nondisparagement clauses, or NDAs. At the moment, Trump is engaged in litigation to stop the publication of a book by his niece, Mary Trump, which reportedly contains damaging revelations about him. Because Mary once signed an NDA, Trump has declared that she is “not allowed to write a book.” On Wednesday, a New York Supreme Court appellate judge lifted a temporary restraining order on publication of the book. Given the heightened public interest in information about the president and the strong presumption against prior restraints on publications of any kind, the interests at stake are on Mary Trump’s side.
Of course, though, Trump’s penchant for NDAs goes well beyond his own family. More troubling still is his practice of requiring campaign staffers and White House employees to sign sweeping NDAs that bar them from criticizing Trump, his family members, or any Trump organizations for the rest of the signers’ lives. A recently filed case, now pending in federal district court in Manhattan, offers a fresh look at Trump’s use of NDAs to muzzle former campaign staffers.
In Denson v. Donald J. Trump for President Inc., Jessica Denson, who worked on the 2016 campaign, seeks a judgment declaring that the form NDA that the campaign required its employees, contractors, and volunteers to sign is unenforceable. When Denson filed a previous state-court lawsuit against the campaign raising claims related to her employment, the Trump campaign sought to enforce the NDA against Denson through arbitration, claiming she violated the NDA by filing the lawsuit. Although an arbitrator initially granted damages to the campaign, a New York state appellate court vacated the award on the grounds that public policy prohibits parties from using NDAs to punish individuals for filing lawsuits. The court did not weigh in on the validity of the NDA itself, noting that any challenge to the campaign’s NDA would have to be presented to the arbitrator in the first instance. While the campaign’s arbitration proceedings were pending, Denson filed a federal lawsuit seeking to have the NDA declared invalid. The federal court agreed with the Trump campaign that Denson had to resolve her claim through arbitration. When Denson sought to initiate her own class arbitration challenging the NDA, however, the campaign asserted that it could itself choose to bypass arbitration, and insisted that the plaintiff “file her purported claims in court.” In her current lawsuit, filed last month, Denson does just that.
The NDA that Denson challenges is breathtaking in its scope. Its nondisparagement clause prohibits campaign workers, for the rest of their lives, from “demean[ing] or disparag[ing] publicly” the campaign, Donald Trump, Trump family members, or Trump companies. The nondisclosure clause forever bars campaign workers from revealing “confidential information” or using such information “in any way detrimental to Mr. Trump, his family,” or any Trump businesses. “Confidential information” includes “any information with respect to the personal life, political affairs, and/or business affairs of Mr. Trump or any Family Member.” On the off chance that the definition leaves some kernel of information unshielded, it extends as well to “all information … of a private, propriety or confidential nature or that Mr. Trump insists remain private or confidential” (emphasis mine).
Denson argues that the NDA is invalid on multiple grounds, including the First Amendment’s speech and press clauses and New York state contract law. Among Denson’s contract law arguments is the notion that any benefit from enforcing the contract is outweighed by the public interest in the free exchange of ideas. At the heart of each legal claim are two key insights about free speech in a democratic system. First, the right of the people to criticize and to share information about government officials is essential to democracy and the rule of law. Indeed, the U.S. Supreme Court has extolled our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Second, speech that scrutinizes government officials is as vulnerable as it is valuable. One need not be a hardened cynic to fear that those who wield power will use it to suppress their critics. This commonsense insight is manifest in numerous aspects of First Amendment law, including the presumption against content-based restrictions on speech and the high bar that public figures must surmount to win damages against speakers who defame them.
The Trump campaign’s sweeping NDA affronts these foundational principles. This would be so even if Trump had not won the presidency and were merely an influential politician. That he is now the president of the United States makes starker still the NDA’s insult to free speech and democratic discourse.
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Finally, although the courts may not need to reach Denson’s First Amendment claim, given the strength of her state law positions, it is important to put to rest the notion that the campaign’s NDA is a purely private instrument, and that the First Amendment therefore does not apply. It is true that the campaign organization technically is a private and not a governmental entity. However, the NDA’s terms extend well beyond the time of Trump’s candidacy and pertains to all information and views about Trump the president as well as Trump the candidate and private citizen. It seeks to stifle any unapproved utterance, from thousands of individuals throughout the course of their lives, about the president of the United States. The First Amendment would mean little if its protections could be circumvented so easily.
Trump has made clear that he values free speech only for himself and his supporters. The Constitution and the laws of New York state are not, thankfully, so selective.
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