NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

from the that-won't-last dept

Last week, we wrote about the president’s brother, Robert Trump, suing his (and the president’s) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn’t seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.

This is not how this works. As Walter Sobchek famously explained: “the Supreme Court has roundly rejected prior restraint.” Or, as 1st Amendment lawyer Ken “Popehat” White notes:

Mary Trump’s lawyer, Ted Boutrous (who knows this stuff better than you do) says that they’ll be appealing. According to the Courthouse News link above:

?The trial court?s temporary restraining order is only temporary, but it still is a prior restraint on core political speech that flatly violates the First Amendment,? Theodore Boutrous, an attorney for Mary Trump with the firm Gibson Dunn, said in a statement. ?We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in election year, should not be suppressed even for one day.?

The lawyer for Robert Trump, Charles Harder (who, yes, once was the lawyer in a case against us), did his usual song-and-dance as well:

?The actions of Mary Trump and Simon & Schuster are truly reprehensible,? Harder said, referring to the book?s publisher.

Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible. What is “reprehensible” is abusing the law to file censorious SLAPP lawsuits on behalf of the rich and powerful.

He went on:

?We look forward to vigorously litigating this case and will seek the maximum remedies available by law for the enormous damages caused by Mary Trump?s breach of contract and Simon & Schuster?s intentional interference with that contract,? Harder added. ?Short of corrective action to immediately cease their egregious conduct, we will pursue this case to the very end.?

Harder and Robert Trump will lose this case and the book will be published. The 1st Amendment and free speech will win, no matter how many times Harder seeks to deny such basic rights to people.

Filed Under: , , , , , , , ,
Companies: simon & schuster

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book”

Subscribe: RSS Leave a comment
32 Comments
Vermont IP Lawyer (profile) says:

Prior Restraint Is Not the Sole Issue

Hopefully Mike is right and the higher NY courts (next level up, called the Appelate Division, or level above that, the Court of Appeals) will see the light and dissolve the restraining order. I predict that will happen quickly enough that the book is out long before the elction. However, even if Harder/Trump lose on that aspect, they might still have a claim for damages for breach of the confidentiality agreement everyone signed once upon a time. No way to evaluate/analyze that aspect without a lot more detail about the confidentialty agreement and the cicrumstances in which it was signed but the 1st Amendment likely doesn’t help the author or publisher with that problem if the plaintiff prsues the case to "the bitter end."

Anonymous Coward says:

Re: Re: Prior Restraint Is Not the Sole Issue

perhaps tweeted after publication of the above article:

Ted Boutrous
@BoutrousTed

Presiding Justice Scheinkman (Appellate Division) has lifted the TRO against Simon & Schuster restraining it from publishing Mary Trump’s book. The TRO remains in effect as to Ms. Trump, but we will be filing a brief in the trial court tomorrow explaining why it must be vacated.
4:05 PM – 1 Jul 2020

Anonymous Coward says:

What would happen if...

Out of curiosity, what happens if the publisher, or the author, release the book anyway. If the judge’s order is unconstitutional prior restraint, they might face an uphill rather than downhill battle defending their actions, but in the end they should prevail.

Barring that, what if it "accidently leaked" and was spread all over the internet?

Vermont IP Lawyer (profile) says:

Re: What would happen if...

There are cases (that I read a long time ago so I cannot provide exact details) where (a) person "X" violates an injunction of a lower court and (b) the injunction is subsequently held invalid by a higher court. As I recall, X can still be sanctioned for violating the injunction on the theory that, at the time, it was strill in force and the higher court only vacates the order later, not retroactively.

arp2 (profile) says:

Re: There really should be a penalty.

Well, for elected judges, they would not be re-elected. For lifetime appointments, they can be impeached. The problem is that can be used by both sides to impeach a judge they don’t think is following "established law." Sadly, this would mean impeaching a judge like ginsberg because voting for gay or abortion rights is clearly not "established law" in the eyes of conservatives.

This comment has been deemed insightful by the community.
Aaron Walkhouse (profile) says:

I find it highly unlikely…

…that a confidentiality agreement over the fight around
a will and it’s eventual settlement could be stretched to
cover all or even most of what happened in the many
decades since it was signed.

‌ ‌
The criminal side of the family might be able to buy an
army of lawyers to say that the side of the family they
robbed were permanently gagged out of the family too;
but they can’t expect to get it past all the judges.

It is most likely they have Striesanded the book to the
top of the charts and delayed it just long enough to tank
the election as much as possible. ‌ The timing suggests
that Mary is from the smarter side of the family. ‌ ; ]

Khym Chanur (profile) says:

Re: I find it highly unlikely…

that a confidentiality agreement over the fight around
a will and it’s eventual settlement could be stretched to
cover all or even most of what happened in the many
decades since it was signed.

Apparently the NDA also included a term saying the Mary Trump wouldn’t discuss her relationships with any of the people on the other side of the dispute.

Aaron Walkhouse (profile) says:

Re: Re: That may apply to THAT time…

…but only the most unscrupulous lawyers try to trick a
court into turning it into prior restraint decades later
by trying to reinterpret it as a lifetime ban on future
speech in the absence of explicit wording making it apply
for the lifetime of the speaker.


As no court will go along with such a ploy without that
specific wording [or words to that effect] agreed to at
that time, the lawyers gamble on finding a pro-Trump judge
to buy time until a appeals sets things right again.

Everything about this case indicates a plan to delay until
they lose, hopefully long enough for the election.


If it becomes obvious, those lawyers would be in trouble;
so expect them to "no comment" whenever confronted on that.

Aaron Walkhouse (profile) says:

Re: Re: Re: And such explicit restraint…

…would also require explicit bans against speaking of
future events and relationships which had not yet
occurred or existed at the time of signing.


Needless to say, such stipulations are quite rare.


P.S: Tell Pyanfar that Brother Aaron, her favourite
Paladin, is still purring when he thinks of her. ; ]

This comment has been flagged by the community. Click here to show it.

restless94110 (profile) says:

Reprehensible

"Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible."

Um, no. First, how does one reveal public information? If it’s already public then there’s nothing to reveal. Second, why would anyone on Earth think or believe that a distant relative of the President of the United States has any information that is important?

No, this is the very definition of reprehensible. it is beyond disgusting. And it’s just another liar trying to get a payday.

Stephen T. Stone (profile) says:

Re:

Other than embarassment-by-proxy at having voted for Donald Trump, what possible reason could you have for being so paranoid about a tell-all book focused on Donald Trump? Hell, I’d bet that if we were talking about a distant relative of Hillary Clinton about to release a tell-all, you’d call for its immediate release.

Stop putting politicians on pedastals. Their fall will hurt you both. I mean, I like AOC, but I don’t think she’s the goddamn Second Coming.

This comment has been deemed insightful by the community.
This comment has been deemed funny by the community.
PaulT (profile) says:

Re: Reprehensible

"Second, why would anyone on Earth think or believe that a distant relative of the President of the United States has any information that is important?"

Because the President is suing to prevent publication?

"it’s just another liar trying to get a payday."

You’ll have to be more specific as to which Trump you’re referring to here, it doesn’t narrow anything down.

Tanner Andrews (profile) says:

Re: Reprehensible

this is the very definition of reprehensible. it is beyond disgusting. And it’s just another liar trying to get a payday.

In which case, it is not properly the subject of the NDA, which by its nature can only cover truthful information. Assuming you are correct, the court erred in issuing any prior restraint at all.

I suppose you could be wrong.

David says:

So?

Harder and Robert Trump will lose this case and the book will be published.

The point of this exercise is that anything short of a three-digit loss will be contested by Trump as voting fraud or the result of "unfair" practices like reporting on his character, tax returns, crimes or similar things nobody is supposed to know about and that everyone knows Democrats are much worse with.

A bad lawyer is as good as any lawyer for painting yourself as a victim. It’s not the judge who has to swallow that tripe but the voters.

That Anonymous Coward (profile) says:

"Simon & Schuster’s intentional interference with that contract"

How can they interfere with a contract they were never a party to?
Because you got a contract for a home loan & I come visit you doesn’t suddenly put me on the hook to repay the bank.

While she might have violated some clause in a contract, trying to hold a 3rd party to the terms of a contract they aren’t a party to is a real reach.

But then the Trump Campaign is trying to hold people paid with public funds to an NDA with them… so yeah.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »