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.

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Filed Under: 1st amendment, book, charles harder, donald trump, mary trump, prior restraint, robert trump, ted boutrous, temporary restraining order
Companies: simon & schuster


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  • identicon
    Anymouse, 1 Jul 2020 @ 3:59pm

    But can they string this out long enough so that the book doesn't come out before the election? Which is probably the real goal, they know they can't stop it, but if they can delay it for several months it won't have as much of an impact on the election...

    Talk about reprehensible...

    reply to this | link to this | view in chronology ]

  • icon
    Vermont IP Lawyer (profile), 1 Jul 2020 @ 4:21pm

    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."

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 1 Jul 2020 @ 4:48pm

      Re: Prior Restraint Is Not the Sole Issue

      I agree that Mary may lose on other grounds. But the book will be published. The money might go to her uncle, though.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Jul 2020 @ 6:31pm

        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

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jul 2020 @ 10:47am

        Re: Re: Prior Restraint Is Not the Sole Issue

        She might be willing to pay that price.

        reply to this | link to this | view in chronology ]

    • icon
      arp2 (profile), 1 Jul 2020 @ 4:48pm

      Re: Prior Restraint Is Not the Sole Issue

      My guess is that they're intentionally going to argue these in serial, rather than parallel, appeal each decision, etc. in order to delay publication until after the election.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jul 2020 @ 4:22pm

    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?

    reply to this | link to this | view in chronology ]

    • icon
      Vermont IP Lawyer (profile), 2 Jul 2020 @ 4:50am

      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.

      reply to this | link to this | view in chronology ]

  • icon
    brad (profile), 1 Jul 2020 @ 4:27pm

    Charles Harder's real role

    Judging from past history is it safe to assume that Harder's real role is to help money change hands? In this case, Greenwood perhaps seeing some extra funding in his next re-election or to his family's benefit?

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 1 Jul 2020 @ 4:45pm

    There really should be a penalty.

    When judges don't do their homework and make adjudications that are contrary to established law and precedent (often conspicuously in line with their own political interests) I feel like something should be done to penalize them.

    Like a nose-punch from the nose-punching machine.

    reply to this | link to this | view in chronology ]

    • icon
      arp2 (profile), 1 Jul 2020 @ 4:51pm

      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.

      reply to this | link to this | view in chronology ]

  • icon
    Aaron Walkhouse (profile), 1 Jul 2020 @ 5:13pm

    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. ‌ ; ]

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 1 Jul 2020 @ 5:17pm

      Re: I find it highly unlikely…

      I, for one, never heard of this book or knew it would ever exist had it not been for this lawsuit.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 2 Jul 2020 @ 12:37am

        Re: Re: I find it highly unlikely…

        The only real difference between the book being published as is, and it going through these lawsuits, is that we know that Trump is such an insecure corrupt asshole that he makes family members sign NDAs.

        Hardly shocking, but we know that now.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 2 Jul 2020 @ 2:29am

          NDAs and the Streisand Effect

          Knowing there are NDAs, I more want to learn what the book discloses. I'm not sure I'll be driven to actually read it.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 2 Jul 2020 @ 3:08am

            Re: NDAs and the Streisand Effect

            Yeah, it's like the Bolton book for me. I'll never actually read it myself, but the effort the administration is putting into trying to block it must mean there's some juicy tidbits in there that someone braver than me will report on (or, ideally, prosecute).

            reply to this | link to this | view in chronology ]

        • identicon
          MathFox, 2 Jul 2020 @ 2:47am

          Re: Re: Re: I find it highly unlikely…

          I don't know whether you can blame Donald for this, he obviously grew up in a dysfunctional family.

          reply to this | link to this | view in chronology ]

    • icon
      Khym Chanur (profile), 1 Jul 2020 @ 6:54pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Aaron Walkhouse (profile), 1 Jul 2020 @ 9:04pm

        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.

        reply to this | link to this | view in chronology ]

        • icon
          Aaron Walkhouse (profile), 1 Jul 2020 @ 9:28pm

          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. ; ]

          reply to this | link to this | view in chronology ]

  • icon
    restless94110 (profile), 1 Jul 2020 @ 5:35pm

    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.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 Jul 2020 @ 6:18pm

      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.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 2 Jul 2020 @ 12:40am

      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.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 3 Jul 2020 @ 11:37am

      Re: Reprehensible

      And it's just another liar trying to get a payday.

      How much do you get paid, then?

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 4 Jul 2020 @ 4:55am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 1 Jul 2020 @ 6:01pm

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 1 Jul 2020 @ 6:12pm

    Looks like...

    a judge looking for a job with the Trump administration.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jul 2020 @ 6:23pm

    Should they Trump Harder?

    reply to this | link to this | view in chronology ]

  • identicon
    Crafty Coyote, 1 Jul 2020 @ 6:32pm

    Or just advertise it as "The Book New York Didn't Want You to Read."

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 2 Jul 2020 @ 6:09am

    "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.

    reply to this | link to this | view in chronology ]


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