Althouse: "Mary Trump’s attorney, Theodore Boutrous Jr., said in a statement that while the judge’s order is temporary, 'it still is a prior restraint on core political speech...'"

July 1, 2020

"Mary Trump’s attorney, Theodore Boutrous Jr., said in a statement that while the judge’s order is temporary, 'it still is a prior restraint on core political speech...'"

"'... that flatly violates the First Amendment. We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in an election year, should not be suppressed even for one day.'... Simon & Schuster said in a filing late Tuesday night that it had already printed 75,000 copies and argued that it would be unconstitutional to stop it from distributing the book. At the same time, the publisher for the first time said that it did not know until recently that Mary Trump had signed a nondisclosure agreement as part of the inheritance settlement."

From "Publication of explosive tell-all book by Trump’s niece temporarily blocked by New York state judge" (WaPo). If prior restraints are indeed a problem here, let Trump collect damages for the breach of contract (if there is one).

103 comments:

rehajm said...: Not as good as Banned in Boston but I know a good marketing ploy when I see one...; 7/1/20, 7:26 AM
Pettifogger said...: I voted for Trump and will do so again, more enthusiastically this time, but "prior restraint" was what immediately came to my mind.

The intense polarization of our politics drives both sides farther apart. I have to work to remind myself that Trump doesn't share a lot of my values. It's just that the Democrats share almost none.; 7/1/20, 7:35 AM
MayBee said...: Hahahhahahah. Citizens United!!!; 7/1/20, 7:38 AM
Mike (MJB Wolf) said...: Contract shmontract. Small bump in the road to #getTrump you know.; 7/1/20, 7:40 AM
Enlighten-NewJersey said...: It’s the younger brother, Robert Trump, suing to stop publication of the book.; 7/1/20, 7:46 AM
Enlighten-NewJersey said...: It’s the younger brother, Robert Trump, suing to stop publication of the book.; 7/1/20, 7:47 AM
MayBee said...: Imagine how steeped in Trump hatred you would want to be to buy a book by his niece because she hates him.
People. Don't bring that poison into your life. Don't feed your own hate, especially right now.; 7/1/20, 7:49 AM
Marcus Bressler said...: "At the same time, the publisher for the first time said that it did not know until recently that Mary Trump had signed a nondisclosure agreement as part of the inheritance settlement"

Does that constitute fraud? Assuming she signed a typical contract...

THEOLDMAN; 7/1/20, 7:49 AM
Bill, Republic of Texas said...: If prior restraints are indeed a problem here, let Trump collect damages for the breach of contract (if there is one).

I hate to argue law with a law professor but isn't "specific performance" or something like that also available remedy? Maybe that's just for property.

What is the point of a NDA if the only remedy is breach of contract. That makes no sense to me.

Anyway, shouldn't the publisher have known if there was an NDA. Why don't they she the author for the costs of printing those books.; 7/1/20, 7:53 AM
BoatSchool said...: I believe the NDA she signed (and is apparently now violating) was a prior restraint on speech that she willingly agreed to. Also hard to believe that the subject of any existing NDA never came up when the publisher was considering this book since DJT is famously litigious about such things.; 7/1/20, 7:58 AM
Dave Begley said...: "The publisher for the first time said that it did not know until recently that Mary Trump had signed a nondisclosure agreement as part of the inheritance settlement."

What?!

She had no right to write the book, much less sell it to the publisher. And where were the publisher's lawyers? And her lawyers? She had a DUTY to disclose the NDA. Duty!; 7/1/20, 8:05 AM
Dave Begley said...: Bill:

Yes, specific performance is a remedy. Also an injunction. Money damages are inadequate. Once the book is out, the damage is done.; 7/1/20, 8:07 AM
Patrick Henry was right! said...: So, the Professor is in favor of eliminating NDAs, thereby decreasing settlements and increasing litigation.
I thought settlements were good and contracts were good.; 7/1/20, 8:08 AM
Michael K said...: The book will obviously be leaked and her settlement should be fair game. Why not have it revoved?; 7/1/20, 8:16 AM
Ann Althouse said...: "So, the Professor is in favor of eliminating NDAs, thereby decreasing settlements and increasing litigation.
I thought settlements were good and contracts were good."

How could I favor an award of damages if I didn't think these contracts were legal?

I'm just saying that the remedy of suppressing the book is probably inappropriate.

You know the difference between law and equity?; 7/1/20, 8:19 AM
Ann Althouse said...: The NDA works because the private individual chooses not to breach the contract, but that doesn't mean the court should suppress the book. The choice not to breach the contract is still influenced by having to pay damages for the breach.; 7/1/20, 8:21 AM
clint said...: Although the legal specifics are different -- an NDA vs campaign finance law -- this makes an interesting contrast to Citizen's United.

I wonder how many people who think Citizen's United was wrongly decided also think this book should be published, making the same free speech arguments they rejected in that case, and how they square that circle.; 7/1/20, 8:22 AM
BarrySanders20 said...: Mary Trump's lawyer Theodore Boutrous should team up with his brother and their friend Stan Ghali to form the law firm of Boutrous Boutrous Ghali.

Still my favorite Secretary General of the UN.; 7/1/20, 8:23 AM
Freder Frederson said...: What is the point of a NDA if the only remedy is breach of contract.

Because an NDA is a contract between two parties. And the only remedy for breach of contract is . . . wait for it . . . to sue for breach of contract.; 7/1/20, 8:27 AM
William said...: I just hope the lawyer involved, Theodore Boutrous Jr, doesn't get into any kind of legal entanglements with the publisher of the memoirs of Boutrous-Boutrous-Ghali, especially if Theodore is joined by his father in such proceedings.; 7/1/20, 8:30 AM
MayBee said...: The choice not to breach the contract is still influenced by having to pay damages for the breach.

I'm not sure I'm parsing this correctly. So...

It seems to me the legal remedy would be to come to an agreement- or have a judgement- that the book can be published if a certain amount of money goes to paying damages for breaching the NDA.; 7/1/20, 8:30 AM
BarrySanders20 said...: What is the point of money damages in the hundreds of thousands to a billionaire?

What is the point of money damages to a person who can file bankruptcy to discharge them?

If an alternative remedy exists to prevent the harm, and the partiea agreed in the contract that money damages might not be adequate to remedy a particular breach, then equitable remedies like specific performance might be appropriate. Of course, if she publishes anyway, then she could be in violation of a court order and do some jail time for contempt.; 7/1/20, 8:31 AM
mccullough said...: Nothing wrong with a prior restraint to enforce an NDA.

It’s very hard to determine damages for breach of promise not to disclose.; 7/1/20, 8:31 AM
Freder Frederson said...: For all of you who are screaming about private companies suppressing speech, your love of NDA's is hypocrisy at it's worst. If NDA's allow suppression of speech, why shouldn't the terms of use for Facebook or Twitter be equally as inviolate? The terms, if you bother to read them, generally say that the companies get to decide what is appropriate.; 7/1/20, 8:32 AM
Narayanan said...: if the brouhaha increases sales of the book - it also increases the $$ recoverable in damages.

so is it a vicious cycle or a virtuous cycle?; 7/1/20, 8:35 AM
Dr Weevil said...: Trump has a living brother we've never heard of? And two sisters, not just the Circuit Court of Appeals judge people thought he might want to appoint to the Supreme Court? (No, really: even people who voted for him worried that he might do that!) That's a very good thing, a relatively normal family!

Back when Reagan was president, I liked to point out that he was the first president since Eisenhower to have a non-embarrassing brother. Neil Reagan did an excellent job of keeping out of the news. Ford was an only child, so I can't say the first since Eisenhower not to have an embarrassing brother, but think about it: Billy Carter, Donald Nixon, Sam Houston Johnson, Ted Kennedy - for a while, every elected president, good or bad, had a drunken loser or crook for a brother. (I suppose Donald Nixon and Sam Houston Johnson could argue about which brother was the crook.) Since then we've had Roger Clinton and Marvin and Neil Bush. Of course, Trump's lack of embarrassing living siblings is partly made up for by his lying asshole of a niece.; 7/1/20, 8:38 AM
Dave Begley said...: Equity does what ought to be done.

There are all sorts of headnotes and equity maxims that support not publishing this book.

Mary Trump freely and voluntarily gave up the right to publish a book when she accepted the money. That was the deal.

Just because Donald is now President doesn't change a thing.

Donald's money damages are wholly inadequate if this FAKE book is published. That's why an injunction - in equity - should be granted.; 7/1/20, 8:44 AM
Dave Begley said...: FF

You hate NDA's because they represent freedom of contract. No one put a gun to Mary Trump's head and made her sign the NDA. Donald Trump isn't Don Vito Corleone.; 7/1/20, 8:47 AM
Freder Frederson said...: Donald's money damages are wholly inadequate if this FAKE book is published.

If the book is "FAKE" (as you contend with zero evidence), then Trump's remedy is to sue her for libel after publication.; 7/1/20, 8:49 AM
MayBee said...: Dr Weevil-

Ford had stepbrothers. I knew one, and he was a very nice man. Not embarrassing.; 7/1/20, 8:53 AM
roesch/voltaire said...: So much to hide, so many lawyers to bring suit-- the stamp of a Trump administration.; 7/1/20, 8:53 AM
paminwi said...: The publisher knew there would be a lawsuit over this book so they printed a couple of thousand of books to be able to say - so sorry, we can’t stop the distribution of the book. They have already been shipped.
Plus, amazing isn’t it, when it’s an article bashing Trump there is no WaPo paywall?; 7/1/20, 8:56 AM
Freder Frederson said...: I wonder how many people who think Citizen's United was wrongly decided also think this book should be published, making the same free speech arguments they rejected in that case, and how they square that circle.

The problem with Citizens' United is that it allowed anonymous groups (or at least groups where it is very difficult to find out who is funding them) to publish political ads. In fact the decision naively suggested that disclosure laws would be passed to prevent such a result.; 7/1/20, 8:58 AM
Freder Frederson said...: Mary Trump freely and voluntarily gave up the right to publish a book when she accepted the money. That was the deal.

And when you signed up for facebook and Twitter you voluntarily gave them the right to decide if your post is "appropriate". That was the deal.; 7/1/20, 9:00 AM
TrespassersW said...: Freder Frederson said...
For all of you who are screaming about private companies suppressing speech, your love of NDA's is hypocrisy at it's worst. If NDA's allow suppression of speech, why shouldn't the terms of use for Facebook or Twitter be equally as inviolate? The terms, if you bother to read them, generally say that the companies get to decide what is appropriate.

I don't know of anybody who "loves" NDAs, but their terms are usually well defined. When I've signed an NDA, I understand exactly what I am agreeing to, what kind of "speech" I am agreeing not to engage in, and for what period of time.

The complaints about Facebook, Twitter, etc., are that their "rules" are unclear (what are "community standards?" What, exactly, is "hate speech?") and enforced almost entirely against one side by faceless, unaccountable apparatchiks.; 7/1/20, 9:01 AM
Gusty Winds said...: Does anybody actually read these Trump hit books, or just the headline synopsis from the NYTs? Bet she asked Trump for money, and he told her "you have enough".; 7/1/20, 9:04 AM
Howard said...: Trump won't sue. The trial would be worst than the book. Every librul shyster will come out of the woodwork to defend the niece por boner. They will demand a very pubic trial. Bring it on.; 7/1/20, 9:16 AM
Francisco D said...: I doubt if Mary Trump's book will change any opinions about Donald. At most, it will reinforce leftists and liberals' views of Trump as either Hitler or an everyday Deplorable.

The publisher should refuse to publish because admitting to knowing the NDA makes the company liable for damages as well. If it is a woke publishing company, then they will take one for the resistance.

In the end, I say "Ho hum."; 7/1/20, 9:18 AM
n.n said...: "The publisher for the first time said that it did not know until recently that Mary Trump had signed a nondisclosure agreement as part of the inheritance settlement."

Laws are like ethical codes: relativistic, politically congruent.; 7/1/20, 9:22 AM
Char Char Binks, Esq. said...: Women, minor children, and other incompetent persons cannot be held to contracts.; 7/1/20, 9:41 AM
Ken B said...: Agreed. She has the right to publish, he has the right to damages from the NDA.
This bothers me a lot. The Democrats are a party of censorship. So it appears are the Republicans.; 7/1/20, 9:41 AM
Krumhorn said...: I’ve read or drafted many hundreds of NDAs or confidentiality provisions in agreements. I don’t believe I’ve ever seen one that doesn’t include standard language that either states that the parties agree that damages for breach would be insufficient remedy requiring equitable relief or, in the alternative, that damages may be insufficient and the non breaching party may seek equitable relief.

The entire point is that there is often not enough money in the world to make the aggrieved party whole. How does Trump prove up compensable damages for the breach by this money grubbing political whore trading off her family name and access?

- Krumhorn; 7/1/20, 9:46 AM
MadisonMan said...: I am reminded of what's-his-name's (7 of 9's husband?) divorce settlement. Court rulings are for little people, not for Democrats with a Noble Cause.; 7/1/20, 10:01 AM
tommyesq said...: Althouse said The NDA works because the private individual chooses not to breach the contract, but that doesn't mean the court should suppress the book. The choice not to breach the contract is still influenced by having to pay damages for the breach.

What if the NDA includes a clause (as many do) expressly providing that injunctive relief can be granted? Can a person contract away the restrictions on prior restraint?; 7/1/20, 10:04 AM
tommyesq said...: Freder said For all of you who are screaming about private companies suppressing speech, your love of NDA's is hypocrisy at it's worst. If NDA's allow suppression of speech, why shouldn't the terms of use for Facebook or Twitter be equally as inviolate? The terms, if you bother to read them, generally say that the companies get to decide what is appropriate.

The objection to Facebook and Twitter is not that private companies cannot suppress speech, it is that they cannot do so without becoming a publisher subject to libel laws.; 7/1/20, 10:05 AM
Mark O said...: Will NDAs become unenforceable generally or only if Trump is involved?; 7/1/20, 10:19 AM
Gk1 said...: Sounds like another Stormy Daniels deal where some bottom feeder now wants to cash in trashing the Donald. Zzzzzz. Too bad contracts and NDA's are still enforceable in this country.; 7/1/20, 10:31 AM
MD Greene said...: Everybody knows that if you were paid by Donald Trump for signing an NDA, that contract was rendered null and void the day after he won the presidential election

Consult any contract law textbook, and you will find it right there, underlined and in boldfaced type.; 7/1/20, 10:35 AM
Drago said...: Tommyesq: "The objection to Facebook and Twitter is not that private companies cannot suppress speech, it is that they cannot do so without becoming a publisher subject to libel laws."

Shhh!

Field Marshall Freder is bringing his deep and insightful legal expertise to the discussion....and its hilarious!; 7/1/20, 10:55 AM
Drago said...: Howard: "Trump won't sue. The trial would be worst than the book. Every librul shyster will come out of the woodwork to defend the niece por boner. They will demand a very pubic trial. Bring it on."

Precisely the advice Avenatti gave to Stormy....and now Stormy is paying The Donald.

Howard and Field Marshall Freder really should hang a shingle and go into business as The Laymen Lawyers.; 7/1/20, 10:57 AM
Francisco D said...: Mark O said...Will NDAs become unenforceable generally or only if Trump is involved?

To ask the question is to answer it.

Democrats have a way in these matters. Look at how Obama was able to get confidential court documents published on Blair Hull (Dem primary opponent) and Jack Ryan Rep opponent)

I signed an NDA with a dishonest home builder. I agreed not to publicly discuss issues with the purchase of my house for financial considerations. It pains me not to tell others what creeps these people are, but I signed a contract for money. I am bound by that contract. It is that simple.; 7/1/20, 11:08 AM
Ann Althouse said...: "What if the NDA includes a clause (as many do) expressly providing that injunctive relief can be granted? Can a person contract away the restrictions on prior restraint?"

The court is limited by the First Amendment. The parties can't bargain that away. You can't make a deal that enlists the courts in whatever you want to say. What if the deal was if I ever publish a book about you you get to cut off my arms?; 7/1/20, 11:20 AM
Calypso Facto said...: Freder says ... "The problem with Citizens' United is that it allowed anonymous groups (or at least groups where it is very difficult to find out who is funding them) to publish political ads."

Ever heard of the Federalist Papers?; 7/1/20, 11:32 AM
Krumhorn said...: The court is limited by the First Amendment. The parties can't bargain that away. You can't make a deal that enlists the courts in whatever you want to say. What if the deal was if I ever publish a book about you you get to cut off my arms?

Our hostess is 100% in error...apart from her absurd example. In enforcing the terms of a contract, a court is not bound by First Amendment issues. If that were the case, then no confidentiality terms in a contract could possible be enforced. The First Amendment does not control the behavior of private parties. As for cutting off an arm, no contract can be enforced the terms of which include the right to commit mayhem.

Obviously, our esteemed con law professor has limited experience with transactional law. A party to an agreement most certainly can bargain away the right to disclose certain information no matter how much others may want to hear it. I’d love to know the ingredients in the Coca Cola syrup, but those who know that formula have contractually committed, in a bargained for exchange, not to disclose it, and Coke could certainly enjoin the publication.

- Krumhorn; 7/1/20, 11:44 AM
The Godfather said...: How can a private agreement between private individuals violate the First Amendment, which prohibits “Congress” from “mak[ing] . . . any law abridging freedom of speech or of the press?” Is it really the case that the Amendment prevents the injured private party from obtaining an adequate judicial remedy for breech of contract?; 7/1/20, 11:56 AM
Howard said...: Blogger Krumhorn said...blah blah blah...this money grubbing political whore trading off her family name and access?

This describes Ivanka to a Tee. Backstabbing and greed must run in the family; 7/1/20, 11:59 AM
Clark said...: The parties to a contract do not have the power to change the rules, which are rooted in the law of equity, that govern whether or not an injunction is an appropriate remedy. The parties cannot (enforceably) direct the judge to ignore the rules of equity, for example, on the question of the adequacy of money damages. The question for the judge is whether or not money damages would be adequate, not whether the parties said they would be in advance, not yet knowing the specifics of the future breach.

There are many rules that the parties are not free to vary even under the strongest freedom-of-contract regime. (It is very likely that damages would not be adequate in the kind of case we are talking about. But that doesn't mean the parties have the power to order the judge to find it so.); 7/1/20, 12:07 PM
Krumhorn said...: The only real leeway on the point is whether a court can conclude that enforcement of the sale by one contract party of the right to speak is clearly outweighed by the interests of public policy. An old famous fart once said something along the line that making decisions on the basis of public policy is like mounting a wild horse having no idea where it will take you. This view is supported by the Restatement of Contacts (Second). Plus there is the factor of partial performance of the contract. When one party has performed, isn’t that party entitled to the performance by the counter party?

In connection with this debate, Corbin wrote, The loudest and most confident assertions as to what makes for the general welfare and happiness of mankind are made by the demagogue and the ignoramus.

Enforcement of contracts to conceal a crime are a tough call on public policy grounds, but I doubt that tax shenanigans would qualify. Political motivations should weigh against a public policy argument. The timing and content is clearly political.

This should be an easy decision for enforcement unless there are strictly classic contract defense issues that would deny it

- Krumhorn; 7/1/20, 12:19 PM
Heatshield said...: IIf she got the inheritance based on the NDA, then she should lose the inheritance. She should also not profit from violating the NDA. Profits should go to the people harmed by her violation of the contract. Her first amendment rights are preserved, but she loses the money she agreed to take for keeping her mouth shut.; 7/1/20, 12:22 PM
hstad said...: Blogger Crazy Jane said...
Everybody knows that if you were paid by Donald Trump for signing an NDA, that contract was rendered null and void the day after he won the presidential election

Consult any contract law textbook, and you will find it right there, underlined and in boldfaced type.

7/1/20, 10:35 AM

Really, Mr. Trump gives up all legal rights when he became President? Which "law textbook" says that. Moreover, Donald Trump is not the litigant. His brother is does he give up his right to litigate too?; 7/1/20, 12:22 PM
Drago said...: hstad: "Really, Mr. Trump gives up all legal rights when he became President? Which "law textbook" says that. Moreover, Donald Trump is not the litigant. His brother is does he give up his right to litigate too?"

hstad, Crazy Jane was being sarcastic.; 7/1/20, 12:34 PM
Krumhorn said...: hstad 10:22 makes a good point. The plaintiff is Trump’s brother, the girl’s uncle, who was also a party to the settlement agreement among the heirs to the estate. The girl got her cake and now she wants to eat it too. In France, the expression is roughly translated as she wants the butter and the money from the butter.

- Krumhorn; 7/1/20, 12:46 PM
tommyesq said...: Krumhorn said

Our hostess is 100% in error...apart from her absurd example.

based on my criminal law professor, absurd examples are the hallmark of the legal education profession (e.g., whether it is murder if you shoot a gun out your 30th story window, with no intention of hitting anyone, but a person who jumped from the roof to commit suicide is struck in the heart as he passes your window).; 7/1/20, 1:15 PM
Howard said...: I have to say, Krumhorn makes some great points even though I know fuckall about the law. He does a good job of framing his logic in relatable terms. Very interested in a response from the Professor.; 7/1/20, 1:23 PM
Ann Althouse said...: The public interest in a witness’s information about the president makes the equitable relief inappropriate.; 7/1/20, 1:23 PM
cubanbob said...: Trump's niece signed the NDA(s) as part of her inheritance agreement ( according to the blurb). It would appear to me she has a lot more to lose than whatever she is going to get from a book deal. I don't understand Althouse's analogy to cutting off the arms. Trump's niece willing signed the NDA. She signed as part of a deal to get her inheritance. She knew what she was signing. As for her free speech argument, she waived it when she signed the NDA. Just like someone who was properly warned by the police waives rights when they make admissions to the police. The niece also conveniently forgot to disclose that to her publisher. Presumably if the publisher wasn't in cahoots with the niece, they have a cause of action against the niece as well. The niece is wealthy enough to have hired competent counsel to advise her before she embarked on this nonsense of hers. This way wind up costing her a lot more than she thought possible.

Freder you never miss an opportunity to get something exactly wrong. Social media companies are either common carriers or publishers, but not both. And their terms of service are elusive and vague. It's just a question of time before they start getting hammered in the courts.; 7/1/20, 1:33 PM
Char Char Binks, Esq. said...: I can still cut off your arms, and then the court can deal with contingency.; 7/1/20, 1:39 PM
cubanbob said...: Blogger Ann Althouse said...
The public interest in a witness’s information about the president makes the equitable relief inappropriate."

Would you make the same argument if Biden, Obama or Hillary Clinton were the targets instead of Trump? Also what exactly does this alleged witness have that is in the public's interest? She certainly wasn't an insider in his Administration. Or in his campaign.; 7/1/20, 1:41 PM
Earnest Prole said...: Apparently the Trump attorneys have never heard of the Streisand Effect.; 7/1/20, 1:46 PM
Fernandinande said...: "Consult any contract law textbook, and you will find it right there, underlined and in boldfaced type."

I thought it was in the penumbra of the Constitution's emanations.

The public interest in a witness’s unfounded gossip, er, I meant "information", about the president makes the equitable relief inappropriate.

So Crazy Jane was right?; 7/1/20, 1:55 PM
Jim at said...: People. Don't bring that poison into your life. Don't feed your own hate, especially right now.

Normally, I'd agree with you. But not in this case. Let them hate. Let it consume them. Let it eat them up inside. They deserve the misery it brings.; 7/1/20, 1:59 PM
Michael K said...: This describes Ivanka to a Tee. Backstabbing and greed must run in the family

Howard, as usual, shows us just what shits the left are.; 7/1/20, 1:59 PM
Inga said...: Trump won’t sue. He’ll be too busy trying to stay out of jail for Treason. Putin laughs.; 7/1/20, 2:02 PM
Tina Trent said...: I don't agree on just money damages. I'm not a lawyer, but I took a deep dive into political NDAs first when the Koch corporation AFP forgot to have me sign one, making me the rare person to get into their orbit and see their contemptuous efforts to manipulate citizen activists. Others who have tried to speak out about them wake up with a lawyer on their doorstep. Me, they just run whisper campaigns, send 12-year olds to interrupt my speeches and stalk me on comment threads. Folks here might pick up a few quarters saying mean things about me.

I then refused to sign Trump's NDA to run GA-9 for him because it was insanely broad. I couldn't just not talk about campaign info -- which is boilerplate -- I had to sign away the right to ever criticize him regarding any part of his life, his family, listed by name, his hotels, golf courses, and even the food in his restaurants, for life. I laughed and told them no. In fairness, crazy as this was, there is a bit of an arms race by everyone with these things. I doubt I could even write this comment if I'd signed the Trump NDA.; 7/1/20, 2:09 PM
narciso said...: silly rabbit,

https://dailycaller.com/2020/07/01/robert-obrien-taliban-russia-briefing-trump/; 7/1/20, 2:17 PM
Tina Trent said...: Wouldn't the usual damages be that she may publish her opinions of Trump as president but nothing about the family estate dispute? Of course then you have a book few would read.; 7/1/20, 2:17 PM
Enlighten-NewJersey said...: So, Robert Trump, the man who is suing the niece, is just out of luck because his brother is President?; 7/1/20, 2:34 PM
Enlighten-NewJersey said...: So, Robert Trump, the man who is suing the niece, is just out of luck because his brother is President?; 7/1/20, 2:34 PM
Enlighten-NewJersey said...: "Robert Trump, Mary Trump and the other family members who settled in 2001, agreed to jurisdiction of future disputes in the Surrogate’s Court of Queens County, New York," Harder said in a statement. "This matter therefore was filed in that court."; 7/1/20, 2:38 PM
Enlighten-NewJersey said...: "Robert Trump, Mary Trump and the other family members who settled in 2001, agreed to jurisdiction of future disputes in the Surrogate’s Court of Queens County, New York," Harder said in a statement. "This matter therefore was filed in that court."; 7/1/20, 2:39 PM
Drago said...: cubanbob: "Freder you never miss an opportunity to get something exactly wrong. "

Field Marshall Freder's synopsis of the Bundy Case is still one for the ages.; 7/1/20, 2:57 PM
Readering said...: Seems like this won't be the first Donald Trump NDA that is held not enforceable on public policy grounds. Probably why brother, last in news for high profile divorce, is suing.

Because of the public interest in all things Trump, there can't be an injunction. Lamberth basically said that at one point in the Bolton TRO hearing. And that implicated classified materials. Nothing classified here.

More Streisand effect. Maybe the lawyer said, hey we can get more $ from your neice if we hype sales.; 7/1/20, 3:18 PM
Tina Trent said...: James M. Daley to a Mr. Cox regarding paper airplanes is one I remember from law school. The social influencer hired to throw a naked stripper from a roof into a pool produced some funny letters. Or just type in "Jacksonville" or "Tampa."

My husband received a "motion to kiss my fat ass" beautifully worded and correctly filed from an inmate once. He says his life would be easier if all lawyers were so brief and followed correct filing protocols as the inmate did.; 7/1/20, 3:32 PM
Tomcc said...: MadisonMan @ 10:01; How different our history would be had those records remained sealed (as both parties had agreed).
Also, until you used the "7 of 9" designation, I did not make the connection!; 7/1/20, 3:51 PM
tommyesq said...: Althouse said The public interest in a witness’s information about the president makes the equitable relief inappropriate.

Aren't you forgetting the weighing factor? The public interest is but one of four factors to be considered, and the "public interest" factor encompasses more than simply the public might want to see this information - the public has an interest, for example, in the upholding of contractual agreements, including NDA's.; 7/1/20, 4:49 PM
Krumhorn said...: Because of the public interest in all things Trump, there can't be an injunction. Lamberth basically said that at one point in the Bolton TRO hearing. And that implicated classified materials. Nothing classified here.

The difference here is that this nondisclosure commitment was an agreement between private parties. Bolton worked as an employee of the federal government. The government seeking specific enforcement of that commitment would certainly bring the First Amendment into play, with certain exceptions for national security.

However, as far as I know, there has never been a court decision denying an injunction to restrain disclosure under an NDA between private parties founded solely on the First Amendment. While the First Amendment might inform a public policy analysis, as seen in other cases such as employment termination of government employees for their revelation of facts in the public interest, the First Amendment restrains the acts of government and should not be used in situations that do not involve state suppression of speech.

Our hostess argues above that there is a public interest in the "witness' information", but to what events was she a witness? She certainly can add nothing to the facts about the acts of governing. All she can talk about is private family matters that, while very interesting much like a massive car wreck, are precisely what she promised not to reveal. The title of the book itself makes clear that lurid fascination notwithstanding, there is no public policy interest at play: Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.

Contrary to Ann's assertion, "public interest" is not part of the legal analysis. Only "pubic policy" could conceivably be weighed, and there is no precedent for that in a case like this that I am aware of.

- Krumhorn; 7/1/20, 5:06 PM
Drago said...: Readering: "Seems like this won't be the first Donald Trump NDA that is held not enforceable on public policy grounds."

Even more relevant: this is not a "Donald Trump NDA".

I'll just file this next to your russia collusion and Kavanaugh is a gang rapist files.; 7/1/20, 5:40 PM
The Vault Dweller said...: Pretty sure that McCain-Feingold had provisions that could have prevented the publication of Movies, or books that are political in nature within a certain time frame near an election, which was thankfully struck down by the court in Citizens United.; 7/1/20, 6:01 PM
Krumhorn said...: In spite of the public's prurient interest in the internal workings and relationships of the Trump family, the First Amendment rights generally belong to the speaker rather than to the audience, and the audience cannot compel speech. A party to an NDA has, effectively waived that right with respect to the revelation of private facts and court enforcement of the agreement is content-neutral which avoids the strict scrutiny that would apply to government suppression of speech. The Supreme Court, in a case where a newspaper promised not to reveal a source, stated that "the parties themselves... determine the scope of their legal obligations" and the restrictions on publication are "self-imposed".

Naturally, the leftie, Souter, dissented saying that any "waiver" of First Amendment rights had to be "measured against the importance of the information to public discourse" and further opined that "the right of the public...is paramount."

This gal is not a newspaper, has made a publishing deal to disclose private-facts and opinions of the Trump family she promised not to reveal in exchange for money an estate settlement, and now she wants to shit on the president just before the election. Frankly, there is nothing she can say, short of provably asserting that he grabbed her by the pussy when she was 12 that would affect my vote.

- Krumhorn; 7/1/20, 6:02 PM
The Vault Dweller said...: Blogger Freder Frederson said...
The problem with Citizens' United is that it allowed anonymous groups (or at least groups where it is very difficult to find out who is funding them) to publish political ads. In fact the decision naively suggested that disclosure laws would be passed to prevent such a result.

Publius could not be reached for comment.; 7/1/20, 6:05 PM
Kirk Parker said...: Roy Jacobsen,

Au contraire, we know exactly what Facebook's "community standards" are--whatever one of their minions wants to be the case, at the moment... and no you can neither read about them in advance, nor find out the wording of the particular one you violated.

My only real objection to them using the phrase is that they don't put the requisite number of scare-quotes around the word "community".; 7/1/20, 6:08 PM
Readering said...: I think the nda's with women citizen trump settled with after sex make for good precedent.; 7/1/20, 6:30 PM
walter said...: I don't care what's in it.
I refuse to buy an explosive book!
Hell, I won't even click that link.; 7/1/20, 6:54 PM
Krumhorn said...: I think the nda's with women citizen trump settled with after sex make for good precedent.

Certainly not. Those NDAs are being attacked with classic contract defenses. Not public policy or First Amendment arguments that our hostess posits. In one case, the woman argues that Trump didn't sign the agreement. In another, she is making a claim that she was misled when she sold the rights to a publisher and the story was shelved. More importantly, challenges to sex conduct NDAs are a matter of state law where legislation has been passed that specifically deals with those issues. Some states have sunshine laws when it comes to litigation involving public hazards. Others have passed #MeToo laws. These are legislated exceptions to contract rights.

None of this applies in this instance. The Trump family NDA was not the result of a settlement of any claims involving Donald Trump's conduct. Mary and her brother were cut out of their grandfather's will, and they challenged the estate asserting that they should be treated the same as the other grandchildren.

There is virtually no factual similarity behind the NDAs with women who agree the sex was consentual and the NDA that is part of the estate dispute settlement. A key point of distinction is that the plaintiff is another of her uncles who is also a party to the settlement. Not Donald.

- Krumhorn; 7/1/20, 7:14 PM
Michael K said...: Readering said...
I think the nda's with women citizen trump settled with after sex make for good precedent.

I assume you mean the black mail attempts. Slick Willie left cum on Monica's dress.

Put that in your pipe and smoke it. No evidence. None. Zero. Nada.; 7/1/20, 7:40 PM
Readering said...: Michael K: testimony based on personal knowledge is evidence. Monica was believed before blue dress tested. (I'm sure you treat patients in part on their descriptions of symptoms.)

Krumhorn. Good points. I guess judges see it that way. TRO lifted as to S+S but not MT. PI should be moot by 7/10 return date.; 7/1/20, 8:09 PM
Michael K said...: Readering said...
Michael K: testimony based on personal knowledge is evidence. Monica was believed before blue dress tested. (I'm sure you treat patients in part on their descriptions of symptoms.)

Not by you. You are one of the many leftists who were sure she had to be lying. The dress and her evidence was the only reason why the left did not treat her as you treated Kathleen Willey and the other rape victims of Slick Willy. I'm sure you dismissed Paula Jones as a hick looking for fame. Don't lie.; 7/1/20, 8:45 PM
readering said...: Michael K: Be nice.; 7/1/20, 9:43 PM
walter said...: Eh yeahhhhh...about that word "blackmail"...; 7/1/20, 10:12 PM
Achilles said...: Ann Althouse said...

The public interest in a witness’s information about the president makes the equitable relief inappropriate

The logical result of your arguments are that contracts are just never enforceable.

At least when one of the parties is Donald J Trump.

It is Donald's brother that is suing in this case. There is more than one person who is going to have their personal life dumped in public.

I hope you are taking some sort of devils advocate position because it is something stupid that Freder would come up with.; 7/1/20, 10:37 PM
Drago said...: Readering: "Michael K: testimony based on personal knowledge is evidence. Monica was believed before blue dress tested"

LOLOLOLOL

Another expected pathetic attempt to rewrite history by the historical ignoramus readering.

The dems were in Full Monica Was A Psycho Liar Mode with the press already pulling out the long knives to go after her when the blue dress appeared and shut that line of attack down.

Otherwise Monica would have been destroyed in the press by Hillary's media army.; 7/2/20, 12:00 AM
Ann Althouse said...: I have a new post — here — about the appellate court's decision... agreeing with me. So take your arguments against me there. I won't gloat, but...; 7/2/20, 4:39 AM
PJH said...: She has breached the NDA when she submitted the book to Simon and Schuster; a company with 1400 employees and 75,000 copies printed and available. Why wait for a further breach before taking action.; 7/2/20, 5:37 AM