That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet

from the free-speech-v.-prior-restraint dept

Yesterday we wrote about how Charles Harder, representing the President’s brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump’s book “Too Much and Never Enough, How My Family Created the World?s Most Dangerous Man.” We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge’s ruling on the TRO.

In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book’s planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.

S&S is not a party to the settlement agreement. The only basis offered by the plaintiff to extend the temporary restraining order to S&S are the allegations that S&S ?intends to act? on Ms. Trump?s behalf in causing the publication of the book and that S&S is acting at Ms. Trump?s direction and in concert with her. However, these allegations are conclusory and not supported by any specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquish any of its First Amendment rights (see Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d at 257). Since the predicate for the plaintiff?s application for a temporary restraining order is the existence of the confidentiality provision of the settlement agreement (and no alternate basis for an injunction against Ms. Trump is either suggested or apparent), and S&S is not a party to the settlement agreement, this Court perceives no basis for S&S to be specifically enjoined.

However, it does appear that Simon & Schuster is not out of the woods yet entirely. Apparently the heavily lawyered-up agreement that the Trump family signed 20 years ago did include a clause that does allow for an injunction against “any agent” acting on a signatories’ “behalf” may also be covered by an injunction. But, the judge argues, there is not enough of a briefing record to establish if S&S qualifies. So, while the order directly regarding S&S is lifted, it is possible that following the hearing next week at the (again, lower) Supreme Court regarding the permanent injunction, it could bring S&S back in under that umbrella:

While the plaintiff has alleged, in effect, that S&S is Ms. Trump?s agent, the evidence submitted is insufficient for this Court to determine whether the plaintiff is likely to succeed in establishing that claim. So, while the plaintiff is entitled to have the temporary restraining order bind any agent of the plaintiff, this Court will not name S&S as being such an agent.

So now, the parties get to fight out over the larger permanent injunction next week, which could bring this debate back around again pretty quickly.

It is worth noting that the court also does nod towards the public interest argument for being one reason why an injunction might not be appropriate, but it is only doing so in acknowledging that argument, not tipping one way or the other on it:

The passage of time and changes in circumstances may have rendered at least some of the restrained information less significant than it was at the time and, conversely, whatever legitimate public interest there may have been in the family disputes of a real estate developer and his relatives may be considerably heightened by that real estate developer now being President of the United States and a current candidate for re-election. Drawing the appropriate balance may well require in camera review of the book sought to be enjoined. Stated differently, the legitimate interest in preserving family secrets may be one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the President of the United States.

So… the fight to publish the book will continue next week.

One element in this case that I haven’t seen much talked about, but also does deserve some scrutiny: the decision to have the case filed by Donald Trump’s brother, Robert Trump. This is, somewhat obviously, a flimsy front for the president himself. He’s using the president’s own lawyer, who has represented the president in a bunch of other cases. It appears that the confidentiality agreement was signed on one side by the president, Robert Trump, and their sister Maryanne Trump Barry a former federal judge. While there may be some expediency reasons to try to pretend that this is really on behalf of the less-well-known brother it still seems like an odd choice for multiple reasons.

First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president. But, more importantly, if there are any “damages” from the breach of this agreement, it sure seems like Donald Trump would have the strong argument for those, as opposed to Robert Trump. But, perhaps Harder is hoping that using Robert Trump somehow gets the court not to consider the public interest argument as laid out above — saying that this case is not actually about the private behind the scenes events related to the President of the United States, but rather his much less well known brother. I have trouble seeing that argument passing muster, but who knows. I didn’t think a judge would engage in prior restraint either, and that turned out to be wrong.

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Comments on “That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet”

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43 Comments
PaulT (profile) says:

Re: Re:

"I’m dying to know what’s in this book that has the Orange in Chief so scared."

Don’t get too excited. This might just be about mundane stuff that his tiny mind and fragile ego can’t handle, like confirming negative stuff we already know. But, we will see.

"If it isn’t allowed to be sold, could someone release a review of the book with all of the sordid details?"

I have no doubt pirated copies are out there somewhere already and someone is working on it, but they might wait till publication is confirmed/denied before releasing their review.

DB (profile) says:

Re: Re:

"I’m dying to know what’s in this book that has the Orange in Chief so scared."

My guess is that you wouldn’t recognize it when you read it.

But some agency that has been following Fred Trump’s "tax-optimized" business dealings would immediately spot the fraud.

I can’t see any other reason for fighting so hard to keep the book from being published. It’s not directly about the election. Most people have already concluded that the stories about Trump’s past are true. His supporters have ignored them before, and aren’t likely to be swayed by a retelling or confirmation. For influencing the few undecided voters, a July release is better than an October release.

Ceyarrecks (profile) says:

Umm, So What?

this book could detail hundreds of well-documented & nauseating criminal activities by Tumpy; So what?
Tumpy has ALREADY been brought up on "well-documented & nauseating criminal activities" and what was done about it? NOTHING.
GOP-held Congress assured of that; so apart from headlines and clickbait, what is this book going to do? There is NO accountability in the u.s. govt. only fanfare, platitudes, rhetoric & status quo.

Anonymous Coward says:

Re: Umm, So What?

People don’t much get prosecuted over what is in a book or an NDA. The accountability is with the electorate, who could read it. It might change the minds of those who are in the middle of the road, which is how Trump got the job in the first place. Biden (blech) is pretty far right-center and he’s about as white as commercial white bread and a man.

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

Anonymous Coward says:

Re: Re: Re:2 Re:

I’m not sure I agree with that. I think Christian values really bolster, underpin and support mental soundness. Without a belief in a higher power, a real higher power that can be reinforced by other believers with a common view, you are afloat in an ocean of immorality and mental instability and ego-centric masturbation.

Right Stephen? Right?

Anonymous Coward says:

Re: Re: Re:3 Re:

"Christian values" are nothing more than a justification for acting like a shitheel. As long as you go to church you’re morally superior to those who don’t, right? And this means that your regular transgressions are ok since you’ll be going to church next Sunday.

Atheists, in my experience, are more moral than so-called Christians because we have to answer to ourselves and to those around us. We don’t get to clean the slate once a week in some ritual of imaginary purging. There’s no fairy princess who will absolve us of our behavior at the mere mention of her name. Because we live in the real world we know that we will have to live with our choices forever. But you… you live in a fantasy world, the very definition of mental instability.

PaulT (profile) says:

Re: Re: Re: Umm, So What?

"I don’t get it."

There’s a giant propaganda machine out there brainwashing people into thinking there’s only 2 possible teams and that one of them is evil. Republicans can’t accept they might be the evil team, but also can’t bring themselves to vote Democrat because by extension they must be the evil team. People who don’t identify with either team often find both unpalatable, so don’t take sides in an election.

Trump is pushing away a hell of a lot of his support, but whether or not that translates into votes against him is unclear.

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restless94110 (profile) says:

Clariity

Someone signs a complex NDA, and you are on their side if they disgracefully want to violate it? Because Trump?

So everything you write about being fair and just is a lie on your part? I’m confused.

Is this like when the "experts" and "leaders" say that you can’t go to a funeral, but you can go to a riot?

I need clarity. So, once again. NDA’s only apply if you like the person?

Khym Chanur (profile) says:

Re: Clariity

  1. Some people are arguing that the NDA shouldn’t apply to the publisher and bookstores because they didn’t sign the NDA.
  2. Some argue that prior restraint is unconstitutional, and thus if someone decides to break an NDA the most the aggrieved party can do is sue the one violating the NDA, rather than getting an injunction to shut the other party up.
  3. I’ve seen the argument that this NDA is too broad. The NDA was part of a private settlement of a dispute over inheritance, but the NDA didn’t prohibit discussing the settlement and the dispute, but also discussing anything about family relationships. Judges have invalidated overly broad NDAs before, but from what I know the precedent on that has to do with employer/employee NDAs, so I don’t know how that would apply here.
  4. Some argue this particular NDA is against the public interest. Judges have invalidated NDAs where enforcing it would be against the public interest.

Anyone arguing anyone of these might just be doing so because they hate Trump, but to know for sure you’d have to compare what they’ve said about other NDA breaches.

IAmNotYourLawyer (profile) says:

Re: Re: Clariity

Just because someone hates Trump doesn’t mean that the arguments are incorrect.

An NDA is a contract. Contracts can bind the parties (and potentially their agents and successors in interest) but not third parties. S&S and bookstores aren’t bound by the NDA- maybe S&S could be liable for tortious interference with a contract (i.e., the NDA). If S&S is an agent of Ms. Trump, then they’d be restricted by that agency, but I’m skeptical this will be shown.

Prior restraint is strongly disfavored in American jurisprudence. In the Pentagon Papers case, the court allowed the publication of classified documents, while acknowledging the national security risks. So there is a high bar required for prior restraint, and a tell-all book probably won’t meet that.

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Anonymous Coward says:

Re: Re: Re: Clariity

Wow, you sound educated, not like some people here. What’s your take on Trump and the upcoming election? It looks to me like the left is doing it’s best to get the whole country to take a knee. I don’t think that’s going to work. Remember the plane with the hijackers that crashed into the field? They wanted people to take a knee, too, while they tried to do their evil business. I don’t think Americans will do it, I think the next election will highlight the actual backbone of the American People in the face of radical left extremists. You’re a thoughtful guy, what do you think? Will the Biden supporters get their wish of a Trojan horse president, or will the country overwhelmingly support America, American Values and President Trump?

PaulT (profile) says:

Re: Re: Re:4 Clariity

"Conspiracy theory that says that after winning the election Biden will be replaced by an extreme left-winger"

…but this being America what that actually means is that it will be someone who’s mildly to the left of Biden, but still right of centre on a global scale. Then, all of the fallout from the pandemic will suddenly all be the fault of their extreme socialist agenda, even though they haven’t enacted any policy yet.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:2 Clariity

will the country overwhelmingly support America, American Values and President Trump?

Read up on your history. America is about freedom, not any particular president or political party. American values teach us to work to overthrow an unjust government and Trump’s government is about as corrupt as we have ever had.

If you really want to support America and her values, vote Anyone but Trump in November.

JMT (profile) says:

Re: Clariity

"Someone signs a complex NDA, and you are on their side if they disgracefully want to violate it?"

There is nothing disgraceful about violating a NDA when the circumstances have changed so dramaticaLLY from when it was signed. When Trump was just a real estate developer his sphere of harm was relatively small. Now that he’s done four years of damage both inside and outside the US, and wants another four (almost certainly worse) years, it would be disgraceful to not let everyone the truth about him.

"Is this like when the "experts" and "leaders" say that you can’t go to a funeral, but you can go to a riot?"

Is this like when disingenuous assholes conflate completely different arguments and still get them completely wrong?

jimb (profile) says:

a bumpy road to the public's interest...

I can’t help but think that, should a restraining order preventing publication be made permanent, that while Simon & Schuster was driving the truck around picking up all the advance copies, it would be a true shame if one were to fall off the back of the truck along a particularly bumpy stretch of the road. A further shame if some unscrupulous party scanned in one of those dislodged review copies, and put the scans online somehow. Wikileaks, if you’re listening…

This comment has been deemed insightful by the community.
Vermont IP Lawyer (profile) says:

New developments

Apparently Mary Trump has made a filing with further detail about the NDA. She alleges in her filing that “I relied on false valuations provided to me by my uncles and aunt, and would never have entered into the Agreement had I known the true value of the assets involved.” She also says that the inaccuracy of the valuations was revealed in a 2018 New York Times investigation.

I cannot speak to the truth of these claims by Ms. Trump but I think she is setting up for a legal argument known as "fraud in the inducement." Details about this concept can be found at https://www.law.cornell.edu/wex/fraud_in_the_inducement. If Ms. Trump prevails, it could make the NDA void.

For me, none of this has much to do with the prior restraint issue. I don’t see how the courts can prevent S&S or Ms. Trump from proceeding with publication in view of the 1st Amendment arguments. The fraud-in-inducement issue has to do separately with whether anyone is liable for damages following publication.

DB (profile) says:

Re: New developments

"Apparently Mary Trump has made a filing with further detail about the NDA. She alleges in her filing that “I relied on false valuations provided to me by my uncles and aunt, and would never have entered into the Agreement had I known the true value of the assets involved.” She also says that the inaccuracy of the valuations was revealed in a 2018 New York Times investigation."

Well, that opens a new dimension to the situation. It potentially opens the rest of the family up to discovery over the true value of estate’s assets, and if fraud was committed when the estate was settled.
Normally the time to dispute the valuation would be long since passed. Even if fraud were discovered later (as appears to have happened), it’s probably not actionable. But now that the other side of the family is trying to enforce the NDA clause, they have opened the can of worms.

If that’s the case, it might have been an element of her strategy all along.

Vermont IP Lawyer (profile) says:

Re: Re: New developments

The statute of limitations in an action for fraud differs state by state. I think it might be 6 years in New York so it would long have expired. But this is different: it is a claim of a specific type of dishonesty at the time of contracting that, if valid, could invalidate the whole contract no matter when it is raised.

David says:

Why the brother?

First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president.

That’s not the point. The point is that by making the brother the plaintiff, the court cannot subpoena any records or data from Trump himself as a non-party which could provide publicly accessible verification of some of the book’s claims or uncover unrelated crimes, misdemeanors and fishiness.

Same reason he has kept his tax returns out of courts’ grasp.

Tanner Andrews (profile) says:

The point is that by making the brother the plaintiff, the court cannot subpoena any records or data from Trump himself as a non-party

Or, in other words, the claim fails because a necessary party is not included.

If the material disclosed covers Don instead of Bob, and Don is not a party, then it will be difficult to explain how Bob is the right party to raise the claim. Don may have a claim, though this is speculation on my part, but Don has to be present to bring his claim.

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