Trump's Lawyers Apparently Unfamiliar With Streisand Effect Or 1st Amendment's Limits On Prior Restraint

from the someone-send-them-the-big-lebowski dept

Over this past weekend, it was revealed that (1) the adult film actress Stormy Daniels (real name: Stephanie Clifford), who has claimed she had an affair with Donald Trump and then was given $130,000 to stay silent about it, is scheduled to appear on 60 Minutes next weekend and (2) President Trump’s lawyers are considering going to court to block CBS from airing it. This is silly, dumb and not actually allowed by the law.

Lawyers associated with President Donald Trump are considering legal action to stop 60 Minutes from airing an interview with Stephanie Clifford, the adult film performer and director who goes by Stormy Daniels, BuzzFeed News has learned.

?We understand from well-placed sources they are preparing to file for a legal injunction to prevent it from airing,? a person informed of the preparations told BuzzFeed News on Saturday evening.

Someone should send his lawyers the Supreme Court’s ruling in New York Times v. United States, in which the Nixon White House tried (and failed) to block newspapers from publishing the Pentagon Papers, noting that it would be obvious prior restraint to block such a publication. As Justice Black noted in a concurring opinion:

Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

If that’s too complicated, someone could just send them renowned legal scholar Walter Sobchak’s analysis of the issue of prior restraint. That might be more their speed:

Of course, even without it being blatantly unconstitutional, there’s the general Streisand Effect nature of trying to stifle the interview — which seems guaranteed to just make that many more people interested in what Clifford has to say about the President. One could argue that this was already going to get a ton of attention so perhaps it wouldn’t make that big a difference on that front, but don’t underestimate just how much free advertising this gets the interview… and how it makes more people wonder why the President is so focused on silencing Clifford.

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Comments on “Trump's Lawyers Apparently Unfamiliar With Streisand Effect Or 1st Amendment's Limits On Prior Restraint”

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Dark Helmet (profile) says:

Trump's usefulness

The really obscene part of this attempt is how wholly unnecessary it is. The evangelical right in this country already sold their souls on the matter of Donald Trump. A less appealing candidate on paper one could not find for the type of American that espouses Christian dogma, yet they voted for him in swaths, a man who is on his third marriage with multiple children, who engaged in beauty pageants and regularly walked in on young candidates for them, who not only cheated on his wives but created a fake persona through which to brag about that infidelity to tabloid papers in New York. This, over a woman married once, who stuck by her marriage in the face of incredible strife, and who has one child by one man and has shown nothing other than at least a competent interest in the well being of her family.

In the face of all that, what is one tawdry affair with an adult film star long before he entered into office? The religious right cannot logically even bat an eye at this story. It won’t matter, except as a story about a cover up.

Yet, here we are.

Wendy Cockcroft (user link) says:

Re: Re: Trump's usefulness

[Sad but True]

However, the liberals own the whole “Brazening it out until the shouting stops and the press get bored of it” thing. They let Clinton get clean away with Lewinsky and other scandals on the grounds that he was doing what they wanted.

Fast forward to the Glorious Leader we have now; he’s brazening it out in the teeth of controversy because his base believes he’s delivering on his promises to them.

Assuming we are all agreed on the above, where do we go from here? Someone has got to the the grownup and someone has got to enforce standards on a subjective, not objective basis. That means nobody gets a pass even if they are enacting (or at least pretending to enact) the agenda of their base.

Mind you, a closer reading of my own post suggests that the base (in both cases) is the problem. If you’re willing to sell out your values in the hope of advancing your political agenda don’t be too surprised at what happens down the road.

This also calls conservatism as it is today into question; it was always our job to the the adults. We’ve dropped the ball, big time. Time to stop pandering and start asking awkward questions about where we’re going to go from here since letting people get away with bad behaviour (whoever they are) is not conducive to healthy political discourse.

Anonymous Coward says:

Re: Trump's usefulness

It’s Ok…

Trump has a (R) after his name, and therefore all of his sins (past, present, and future) have been/are being/will be forgiven, and therefore one mustn’t judge.

For Evangelicals, I assume (R) indicates (R)edeemed, and (D) indicates (D)emon or maybe (D)evil.


Roger Strong (profile) says:

Re: Trump's usefulness

No, that’s not the really obscene part. The really obscene part is what it’s being used distract people from. Consider what else is happening today:

Abu Ghraib torturer Rick Saccone is up for election in Pennsylvania’s 18th congressional district today. Far from disavowing him, Trump spent the weekend in Pennsylvania campaigning for him. Don Jr. campaigned for him yesterday.

Today Trump appointed Gina Haspel as head of the CIA.

Wikipedia: Gina Haspel:

Haspel ran a "black site" CIA prison located in Thailand in 2002. The site was codenamed "Cat’s Eye" and held suspected al Qaeda members Abd al-Rahim al-Nashiri and Abu Zubaydah for a time. The Senate Intelligence Committee report on CIA torture specifies that during their detention at the site they were waterboarded and interrogated using no longer authorized methods. Declassified CIA cables specify that Zubaydah was waterboarded 83 times in a month, was sleep deprived, kept in a "large box", had his head slammed against a wall and he lost his left eye. Zubaydah was deemed, by the CIA interrogators, to not be in possession of any useful intelligence.

Haspel later was the chief of staff to Jose Rodriguez, who headed the CIA’s Counterterrorism Center. In his memoir, Rodriguez wrote that Haspel had "drafted a cable" in 2005 ordering the destruction of dozens of videotapes made at the black site in Thailand.

The evangelicals are perfectly OK with far, far worse than Trump banging porn stars while his wife recovers from giving birth to his child.

Anonymous Coward says:

Re: Re: Re: Trump's usefulness

If people really cared about that, there would be an entirely difference type of politician compared to what we have now running for office.

It’s just a fact that people are okay with corruption like this when it serves their politics. Trump got in by making fake promises to clean up the government, but as usual, despite the evidence, people believed a liar. And as long as the economy keeps going up, a lot of people will easily forgive all the lying and corruption without realizing that like all other things, the bill will come due.

Anonymous Coward says:

Re: Re: Re:2 Trump's usefulness

“If people really cared about that, there would be an entirely difference type of politician compared to what we have now running for office.”

Your use of the term people implies it is inclusive of everyone, however – simple logic tells us that can not be the case as all it takes is for one singular person to not fit the generalization and your all encompassing statement goes down in flames.

“It’s just a fact that people are okay with corruption like this when it serves their politics.”

And again … the same comment – and the rest of it too

fyi – he did not get the popular vote despite his silly assed claims.

takitus (profile) says:

Re: Trump's usefulness

Dark Helmet,

I can’t see how your comment contributes much beyond an attempt to spark yet another Trump v. Clinton flamefest of the type usually started by blue and his cohorts. The point of Mike’s article, it seems, was not to debate the relative moral worth of politicians, but to point out the obvious threat posed by a politician who attempts to silence someone who might publicly embarass them.

Given that you regularly contribute to this site, I’m disappointed by what seem to be a troll-baiting comment.

Dark Helmet (profile) says:

Re: Re: Trump's usefulness

It wasn’t troll baiting at all. The whole point of the comment was to illustrate that this prior restraint attempt by Trump is doubly idiotic because IT’S NOT NECESSARY. His supporters won’t care, even those supporters that claim moral superiority in the form of their religion. If anyone were to care, it would be them, but they haven’t in the past and won’t in this case.

In other words, Trump is trying an unconstitutional move without any real reward.

Anonymous Coward says:

Re: Trump's usefulness

When the rest of it comes out, that won’t matter to evangelicals either.

So when Trump’s piss tape from Russia comes out, they’ll be okay with it.

So when the Trump Modeling Agency’s importing of underage girls comes out, they’ll be okay with it.

So when Trump’s history of sexual assault and rape comes out, they’ll be okay with it.

So when Trump’s other affairs and other payoffs come out, they’ll be okay with it.

I’m sure some of you reading this think I’m wrong or that I’m exaggerating. Wait and watch. Wait and watch.

Anonymous Coward says:

Actually, it's a BIT complicated by the apparent agreement.

President Trump’s lawyers are considering going to court to block CBS from airing it.

OMG! Lawyers "considering"! STOP THE PRESSES! — NO! CALL OUT THE NATIONAL GUARD! The Constitution is in danger!

This is more of your characteristic prediction by which you try to look Pontifical. But you’ll look like an excitable squirrel if they TOO conclude it’d be a tough sell.

Killercool (profile) says:

Re: Actually, it's a BIT complicated by the apparent agreement.

Why, yes. You’re absolutely right!

It’s just day to day business that the HEAD OF THE EXECUTIVE BRANCH is considering violating the constitution, because he might look bad. Definitely nothing like him going after people for lèse-majesté.

Nothing to see here!

Move along!

Anonymous Coward says:

Re: Re: HEAD OF THE EXECUTIVE BRANCH is considering violating the co

To be fair to the AC (don’t know why I feel compelled to defend him, except that he’s obviously incapable of defending himself)-

Going to court to argue for something that Killercool, or me, or anyone, thinks is unconstitutional – is not unconstitutional.

Mr. Trump and his lawyers are not violating the constitution by asking a court to do things – even things that are unconstitutional on their face (as in this case).

He’d be crossing the line if he used his executive powers to prevent CBS from airing the piece – before asking a court. He’d be crossing the line if the court rules against him, and he does it anyway.

Just asking doesn’t violate the constitution.

Anonymous Coward says:

Re: Re: Re:2 HEAD OF THE EXECUTIVE BRANCH is considering violating the co

If he wasn’t a government official I would be more inclined to agree with you.

The fact that he is a government official means the First Amendment directly applies in this case and him even considering it shouldn’t have even happened. Going through the courts or executive order doesn’t matter, it’s still unconstitutional.

If he was a private citizen, yes, he could ask such a thing of the court and it wouldn’t necessarily be a big deal, except, Streissand. Though he would still be wrong, the press is pretty much protected to report on public figures. If he was a nobody from down the street, then yes, I could see an injunction being granted.

But he is neither of those things, arguably he is THE MOST public figure in the US, and the highest ranking member of the government. As such, it is unconstitutional to prevent the press from broadcasting anything regarding himself, whether it occurred during his presidency or not.

As an extreme example, would you say that he should be allowed to prevent the press from reporting that he was recruited to be a Russian spy at the age of 21? (Please note I am NOT saying this is true. Just giving an example that just because something happened before he became a public figure, does not mean that gives him the right to force the press to not report it, nor does it mean it isn’t relevant.)

Anonymous Coward says:

Re: Actually, it's a BIT complicated by the apparent agreement.

The fact that they are even considering violating the Constitution is horrifying and definitely newsworthy.

The fact that our sitting president cheated on his wife is also newsworthy as he has made a big deal about how respectful to women he is.

Or are you applying a double standard? It’s not ok for a Democrat president to do it (Clinton) but it’s fine if they are a Republican?

Either way, you’re wrong.

That Anonymous Coward (profile) says:

And yet we are talking about Trump and not Stormy.
This is a tried and true Trump tactic of “look at me, look at me, look what I can do”. (see also Stuart from MAD TV)

The lawsuit had no merit, but it clouds the discussion & with the constant churn of the media Story’s story gets shifted to the side a little more each time.

Look at all of the coverage about the fossils being stolen from the areas around Bear Ears that are now unprotected areas… oh yeah that got about 30 seconds b/c Trump did something stupid again.

Anonymous Coward says:

$130,000 to stay silent. So if she’s now talking, she should not only give all that money back but get a penalty because she signed papers to stay quiet to get that money. So she’s breaking the contract. SUE the crap out of her!!!!

Having sex with some woman is not a crime. May not be the best thing to do if you’re married to someone else and then run for and become President. These things tend to leak out, especially when the Media is doing its job and not giving a free pass like they did for Obama where they didn’t do anything. Free pass pretty much all the time.

I just don’t see what the big deal is. I’m sure most in Congress on both sides have done the same thing.

Anonymous Coward says:

Re: Re:

The actual fact of it happening is not a big deal in and of itself.

The fact that it a sitting president cheated on his wife but made a big deal about how much he respects women during his campaign (despite him not actually), and now considering violating the Constitution to silent the press IS a big deal and very newsworthy.

Anonymous Coward says:

Re: Re:

“Having sex with some woman is not a crime.”

That depends on the particulars and on the jurisdiction. There are 21 states in which adultery IS a crime — and in Wisconsin and Michigan, it’s a felony. Therefore, depending on the particulars of Trump’s affair with Daniels, it might (or might not) be a crime, and if it is, then attempting to cover it up by paying off Daniels may be obstruction of justice.

By the way there is precisely zero evidence — despite 10 years and counting of assiduous research – that either Obama committed adultery at any point in their marriage. Zero. None. Zip. Same for the Bushes. Zero. None. Zip. Whether you like or dislike either and/or their policies, you have no basis whatsoever for suggesting otherwise.

Wendy Cockcroft (user link) says:

Re: Re: Re:

I’m no fan of whataboutism but this is one “what about” I do agree with. And while I’m on the subject didn’t a certain Mr. Gingrich involve himself in an adulterous affair while attempting to impeach Clinton?

The fact that we’re resigned to our Glorious Leaders being utter hypocrites is possibly the saddest aspect of this story.

The Obamas — and the Bushes — comported themselves with dignity while in office, I’ll give them that.

Anonymous Coward says:

No, re-familiarize YOURSELF with Hulk Hogan devastating Gawker!

You’ve even written about the huge “chilling effect” that supposedly has!

IS basically same sitch: a celebrity’s private foibles (here even less substantiable, only verbally alleged, no video), exposed to embarrassment for NO actual purpose that will serve We The People. It’s likely CBS which better think this over.

Also, there may be a way to injunct Clifford to force withdrawing permission to air it.

And no, I’m not concerned: this is probably very little, and also will (if worst you imagine) likely just increase Trump’s appeal, because CBS is hated by Trumpists.

Anonymous Coward says:

Re: No, re-familiarize YOURSELF with Hulk Hogan devastating Gawker!

Maybe you should re-familiarize yourself with the whole Gawker sitch? Especially the part where TD wrote about how the courts got it WRONG, because, you know public figure and free speech and all that?

Also, there is a very big difference between this case and Gawker. Hulk Hogan was a private individual and as such does have a right to a certain amount of privacy. Donald Trump is the president of the United States of America, our top government official. As such he has no particular right to privacy, and he CERTAINLY does not have the right to stop the press from reporting ANYTHING about him. That’s kind of the whole reason for the First Amendment, or did you not actually read the article?

Anonymous Coward says:

Key difference between Pentagon Papers and this

In the Pentagon Papers case, the government was the plaintiff, on the basis of the contested documents being governmental in origin. The First Amendment rightly limited the government’s ability to censor the publication.

In this case, lawyers for a private citizen (who happens also to be the current sitting President), are (considering) contesting the publication on the basis that it would violate a private contract (the Nondisclosure Agreement) between their client (Mr. Trump) and the would-be speaker (Ms. Daniels). It is more noteworthy than usual because the plaintiff is a sitting President, but his lawyers are not censoring Ms. Daniels due to a governmental interest. They are (considering) censoring her for a private contractual matter. They still may not have a legal leg to stand on (particularly considering the general disfavor applied in cases seeking prior restraint), but this isn’t a governmental prior restraint case in the way that the Pentagon Papers case was. This is a (very high profile) private citizen seeking prior restraint against non-governmental entities (Ms. Daniels and/or CBS).

Anonymous Coward says:

Re: Key difference between Pentagon Papers and this

In this case, lawyers for a private citizen (who happens also to be the current sitting President)

As soon as Trump took office as President, he ceased to be a private citizen. Your argument is invalid, he is a government official and as such cannot force the press to do anything per 1A of the Constitution.

This is a (very high profile) private citizen seeking prior restraint against non-governmental entities (Ms. Daniels and/or CBS).

Again, he’s no longer a private citizen for the duration of his term of office. Also, it would be one thing if he was suing Ms. Daniels for breach of contract. Right now he’s not. Instead, he wants to sue CBS and seek prior restraint. That would be a direct violation of the First Amendment of the Constitution.

CBS is under no obligation or contract to not discuss the president’s prior infidelity on national news. In fact, that is their protected right under the Constitution.

Honestly, if the president of the United States can’t be trusted to be faithful to his wife, can he really be trusted to run our country?

Anonymous Coward says:

Re: Re: Key difference between Pentagon Papers and this

It is difficult to blame the government for something that happened before Trump entered office. As much as he has become an official, he wasn’t at the time of the contract or the time of the content of the contract.

When that is said, Trump is and was a public figure and should be able to take some further press than most others on account of public interest. But it is not an issue of government censorship.

If you threw out every infidel president in US history, you would end up with a very short list. That Trump has a history of not treating women well, is more of an issue, but even then, I don’t care about it. I am not even as concerned about his specific legislation. What is concerning about his ability to run the country is the lack of respect for basic democracy/republican principles and meritocracy, when appointing people and the complete lack of common sense.

Anonymous Coward says:

Re: Re: Re: Key difference between Pentagon Papers and this

Whether he was or was not a government official at the time is irrelevant to the fact that he is now, in his capacity as President of the US, considering forcing a member of the press to bow to his wishes.

That is the problem. And that is specifically what the First Amendment forbids a government official from doing. Especially the President.

Now if he were to sue Ms. Daniels for breach of contract, that’s different. Whatever else she is doing, she is in breach of that contract. And that is a case that could go forward, constitutionally. Forcibly silencing the press is not.

If you threw out every infidel president in US history, you would end up with a very short list.

I am actually curious, I’ve only heard of really one president, maybe a couple, being unfaithful. Can you provide links? Not saying you’re wrong at all, this is just something I’ve never heard someone claim before, nor is it something I’m familiar with.

Roger Strong (profile) says:

Re: Re: Re:2 Key difference between Pentagon Papers and this

Now if he were to sue Ms. Daniels for breach of contract, that’s different. Whatever else she is doing, she is in breach of that contract.

Is she though?

She’d given a several interviews on the subject before signing that contract in 2016. It seems that all she’s done is confirm what was already on public record… after Trump’s lawyer Michael Cohen did the same. Which she argues broke the terms of the agreement.

Her lawsuit against Trump seeks a judgment declaring that the nondisclosure agreement never came into effect because Trump never signed it. If that’s the case, she’s offered to return the money.

There’s also the issue that the agreement doesn’t mention either by name. Daniels/Clifford is identified as Peggy Peterson, while Trump is named David Dennison.

Anonymous Coward says:

Re: Re: Re:3 Key difference between Pentagon Papers and this

Ah, interesting. I was uninformed as to the specifics of the agreement. That was my fault for not doing proper research on it.

If that is the case, then yes, I would have to agree with you. At the very least, she would be well within her rights to discuss what was already public record prior to the signing of the contract in 2016.

If it was never signed/invalid in some way, then she has every right to speak to the press and this looks even worse for our president than I originally thought.

Anonymous Coward says:

Re: Re: Key difference between Pentagon Papers and this

Interesting view that one who is elected to public office loses legal rights accorded by law to private citizens, including accrued rights on matters that occurred in their entirety while a private citizen. Perhaps you have a cite to the text of the Constitution that supports your view.

Anonymous Coward says:

Re: Re: Re: Key difference between Pentagon Papers and this

Why yes, yes I do:

As a follow up to that:


In the context of defamation actions (libel and slander) as well as invasion of privacy, a public figure cannot succeed in a lawsuit on incorrect harmful statements in the United States unless there is proof that the writer or publisher acted with actual malice by knowing the falsity or by reckless disregard for the truth.[2] The legal burden of proof in defamation actions is thus higher in the case of a public figure than in the case of an ordinary person.

Additionally, the Supreme Court case affirming this was cited in this very TD article. As I am not one to be such a jerk as to never provide links to proof of my claims, here is the link:

Now then, you were saying?

Anonymous Coward says:

Re: Re: Re: Key difference between Pentagon Papers and this

Yeah – not like holding high office means your life has to change at all. For example, that blind trust thing is not needed is it? The prez is not held to the same insider trading laws everyone else has to abide by so why should the prez even bother to look presidential or be discreet at all.

Anonymous Coward says:

Re: Re: Re: Prior Restraint

Because the judge is arbitrating the disagreement, he’s not the one requesting the injunction, nor is he the one bringing the case on behalf of the government.

He is only “representing the government” in so much as he is technically employed by the government as arbitrator of justice, he’s not actually representing either side.

ECA (profile) says:

"and not actually allowed by the law. "

60 minutes has Cut many articles because of Interesting problems..
LIKE the episode might get a Billionaire upset and start suing, and take YEARS in court, and TONS of money from the network..Pay off the HEAD of the network and KILL the program..Get everyone FIRED, and they hire New people that are more favorable..

When they REALLY hit hard, they have ENOUGH backing, and proof, and Everything on their side.. That going to Court will HURT the other guy/group/…

In many instances they goto a CLOSED court, where the JUDGE is the decision maker..NO JURORS..

Anonymous Coward says:

CBS lawyers may be familiar with CBS v Davis

CBS’s attorneys may be familiar with the 1994 case of CBS v Davis.

The Reporters’ Committee for Freedom of the Press (RCFP) summarizes under the headline, ”Blackmun strikes down prior restraint on segment of CBS newscast” (Feb 24, 1994)—

Just hours before the scheduled broadcast of CBS’s "48 Hours," U.S. Supreme Court Justice Harry Blackmun overturned a ban on the televising of a segment featuring videotape secretly shot at a meat processing plant. . . .

Justice Blackmun’s opinion, in chambers, acting as circuit justice: CBS v Davis (1994)

John85851 (profile) says:

So what

At the risk of sounding cynical, so what if Trump and his team do this?

The Trump supporters will ignore this because they think he’s making America great again.
The Trump haters will see that as yet another example of his bad character.
Congress will do nothing.

And the media will focus on Trump’s gossip and drama instead of real stories like the firing of Tillerson and how the House’s Russian-collusion investigation was a sham.

Anonymous Coward says:

Re: So what

The “so what”, is that it is basically the very thing the First Amendment was put in place to prevent. If he goes through with it and wins, the First Amendment will be destroyed and will open up the government to control the press and speech of American citizens.

Once that is gone, it’s a short hop off a long cliff into total dictatorship. It has nothing to do with what Trump haters/supporters or the media will focus on. It has everything to do with destroying the very foundation of free speech in America.

That’s “so what”.

Anonymous Coward says:

Re: Re: So what

If he goes through with it and wins…

The centralized, institutional press has lost a lot of power since the days when Walter Cronkite could honestly claim the title, “Most trusted man in America.”

Fifty years ago, in February of 1968, Cronkite told his CBS Evening News audience about what he had seen in his tour of Viet Nam, “It is increasingly clear to this reporter that the only rational way out then will be to negotiate, not as victors…”. Five weeks later, President Lyndon Baines Johnson announced that he would not seek reelection that year.

But for all that the centralized, institutional press has lost power in the past half century, it strikes me as exceedingly unlikely that the current president would today prevail in a naked test of the nation’s stomach for raw censorship.

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