Judge Does The Expected: Gets Rid Of Prior Restraint Order Against Mary Trump, Allows Her To Publish Her Book

from the 1st-amendment-wins-again dept

As we had fully expected a judge in NY has now tossed out the bogus restraining order against Mary Trump, the niece of President Donald Trump, regarding her book about the President and their family.

In a much more detailed order than his original Temporary Restraining Order, NY Supreme Court judge Hal Greenwald gives multiple reasons for rejecting the effort, lead by the President's lawyer Charles Harder but on behalf of the President's brother Robert Trump, to claim that the contract that was agreed to among various family members should block the publication of the book. Some had noted that the gag clause in the agreement between the various Trump family members was quite broad, and wondered how that might actually lead to problems with publication, but Judge Greenwald notes that the broadness works against the contract here:

Reviewing the Agreement and the words contained therein, considering what is known of the parties at that time and the circumstances of, what appeared to be somewhat nasty litigation, it is possible to read the Agreement and see a contract with a confidentiality clause. Yet, the clause is so overly broad, as to be ineffective.

He claims that Harder/Trump attempted to "misinterpret the Agreement" and says that they want the court to "puzzle the pieces" of the Agreement to read much more broadly than they should.

According to the above reading, the case is slam dunk. But it is not. Too many words, with too many meanings. The cost of the litigation that was settled should have been finalized with more specifics, more clarity, if the current situation was even comprehended, at the time the Agreement was signed

The Judge, following on the guidance from the Appellate court, makes it clear that Simon & Schuster is not "an agent" of Mary Trump, and therefore is not bound by the agreement. That was pretty much widely expected.

The bigger question, then, was what about Mary Trump. And here, the court says that Robert Trump has completely failed to show what irreparable harm there would be from Mary's book being published:

At this point, plaintiff asserts that the release of confidential information, no matter what it is amounts to irreparable harm. He is unaware of the information contained in the Book, in which case the court finds he does not sustain his claim; or there is already so much confidential information “out there” pertaining to the plaintiff, that it is moot for the court to even consider an injunction. In the instant matter, the movant has not shown sufficient information that he will be likely to have success on the merits of his case. Moreover, even if the court were to relax the standard applicable to likelihood of success, it still would fail. Plaintiff’s arguments in support of a finding in his favor on his Verified Complaint are unavailing. Accordingly, the Court rules that ROBERT TRUMP has not demonstrated by “clear and convincing’ evidence that he has a likelihood of success on the merits of his case.

Furthermore, the court later highlights one of the oddities of having the President's brother file the lawsuit, rather than the President himself: namely that it's likely that any "damage" should that come from the book would be targeted at the President. But the President is not the plaintiff:

In the matter before this Court, Plaintiff has failed to meet his burden of demonstrating, imminent, irreparable harm, to him (emphasis added). His allegations are unsupported and conclusory. They are without any specifics as to how he, ROBERT S. TRUMP will suffer irreparable harm. Remember the Plaintiff is ROBERT S. TRUMP and no one else. There has been nothing offered that demonstrates that the actions by MARY LTRUMP in publishing the Book will irreparably harm sole plaintiff ROBERT S. TRUMP.

I know that at least one amicus brief in this case, the one filed by Public Citizen Litigation Group had focused on this key point:

So far as we can see, every one of the disclosures about which Robert Trump’s lawyer has complained related to that lawyer’s far more famous client, Donald J. Trump, and says nothing about Robert, the only sibling who has invoked the NDA. Robert Trump lacks standing to enforce his brother’s rights; and my guess is that Donald Trump, although he made no bones about claiming publicly that his niece had no right to publish a book, made a deliberate choice not to expose himself to being deposed in this litigation by being a plaintiff.

The judge seems to have clearly recognized this point.

He also seems to have gotten the message from the appellate court about prior restraint:

Thereafter at the appellate level and in this Court in opposition, besides refuting plaintiff’s application for a preliminary injunction, MARY L. TRUMP’s papers contain a virtual history of First Amendment Rights and “prior restraint” caselaw. What follows herein is a brief synopsis of the law, in no way meant to be a complete recitation of all the caselaw and quotations provided by the attorneys for MARY L. TRUMP. It is proclaimed, the enjoining of the publication of the Book is classic “prior restraint” and cannot be tolerated. The Book is characterized as “political speech”. Procter & Gamble v Bankers Trust Co., 78 F.3d 219 (6th Cir.1996). “Freedom of speech” is invoked N.Y.Times Co. v Sullivan, 376 U.S.254 (1964). Prior restraint is deemed to be unconstitutional. Neb. Press Ass’n v Stuart, 427 U.S. 539 (1976). It is noted that the release of the so-called Pentagon Papers, did not amount to prior restraint. In New York law, under Arcara v Cloud Books, 68 N.Y.2d 553 (1986) if the government is the one seeking to enjoin speech “public injury”, must be shown. Injunctions are seen as “state power”. There is a significant presumption against the constitutional validity of prior restraints, even if it concerns leafletting Org. for a Better Austin v Keef, 402 U.S. 415 (1971). This court finds that Alexander v United States 509 U.S. 544 (1993) dealt with criminal forfeiture of obscene material. It was found that the forfeiture was a criminal penalty, the material was not “taken” on the suspicion of being obscene, before a judicial determination. It was not a “prior restraint”. The papers overlook Near v Minnesota ex rel. Olson, 284 U.S. 697 where the US Supreme Court held that a Minnesota statute that found a newspaper that had published defamatory articles against public officials was a nuisance, and by being deemed a nuisance a court could permanently enjoin that paper from being published, was unconstitutional and further that this, prior restraint would be, “…the essence of censorship”.

He also quotes the judge in the similar case (also by Charles Harder) that tried to block the publishing of John Bolton's book, saying that "the horse is not just out of the barn, it is out of the country."

And finally, the judge adds a fun quip of his own:

Lastly, in the vernacular of First year law students, “Con. Law trumps Contracts”.

Perhaps next time, the President and his family (and his censorship-happy lawyer) will think twice about trying to ban books. Given how many times this sort of thing has happened, though, I doubt much will change.

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Filed Under: 1st amendment, book, charles harder, donald trump, hal greenwald, mary trump, new york, prior restraint, robert trump
Companies: simon & schuster


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  • icon
    Code Monkey (profile), 14 Jul 2020 @ 9:49am

    DId anyone else notice....

    Fred Trump's middle name is "Christ". Seriously? :P

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

  • icon
    Stephen T. Stone (profile), 14 Jul 2020 @ 10:31am

    Y’know, the book probably would’ve gone more unnoticed if Trump hadn’t filed the lawsuit. Now it seems like he has something damaging to hide — well, something damaging that might actually damage him, at any rate — that the book would reveal to the world. But from what I’ve seen, the book only corroborates pre-existing assumptions about Trump. If he didn’t want people to think the book contained shocking secrets and unknown/unassumed revelations about his character…well, too late now.

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

    • icon
      crade (profile), 14 Jul 2020 @ 10:55am

      Re:

      If you tried to read everything trump tried to muzzle because it was negative to him it would probably take you a lifetime.

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

    • icon
      Thad (profile), 14 Jul 2020 @ 10:58am

      Re:

      Y’know, the book probably would’ve gone more unnoticed if Trump hadn’t filed the lawsuit.

      I doubt it. Every Trump tell-all gets a huge media blitz.

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

      • icon
        PaulT (profile), 14 Jul 2020 @ 10:58pm

        Re: Re:

        It wouldn't have been completely unknown, but most of them don't get this amount of press. Michael Wolff's book got a lot of press because it was essentially the first major title released about his presidential campaign and early office. Bolton's book got a lot of press because it essentially was the stories he should have been telling in from of Congress but refused to do so when requested.

        But, most of the others don't get this kind of publicity blitz, which happened almost entirely because he was trying to NDAs on his own family members.

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

    • identicon
      Anonymous Coward, 14 Jul 2020 @ 11:08am

      Re:

      Trump is an egomaniac, a narcissist, a sociopath and a pathological liar. Anything, anything at all, that mentions him without stroking his ego is "fake news" and a "liberal hoax". Everything he does is entirely predictable knowing who he is. I doubt this book will tell us anything new apart from maybe some of the reasons he's the way he is.

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

      • icon
        JMT (profile), 14 Jul 2020 @ 9:53pm

        Re: Re:

        It's not so much that we'll learn stuff about Trump we didn't already know or suspect, it's that's it's from a close family member and clinical psychologist. It's going to be much harder to discredit her words than those from others without that familiarity and expertise.

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

      • identicon
        Pixelation, 15 Jul 2020 @ 7:06am

        Re: Re:

        I'm curious to see if he has ever accepted responsibility for anything that went wrong in his life. From what I've seen, he has spent his life finding scapegoats and firing them.

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

    • identicon
      MathFox, 14 Jul 2020 @ 11:36am

      Stephen, I think you hit the nail on the head:

      Hey Uncle Robert, why don't sue me over my book, that's bound to generate more publicity than my advertising budget can buy!

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

      • icon
        Stephen T. Stone (profile), 14 Jul 2020 @ 12:18pm

        …y’know, given the history of the Trump family, the lawsuit being part of a grift to make Mary Trump more money that she would’ve made without the lawsuit (and subsequent attention) wouldn’t surprise me.

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

  • icon
    crade (profile), 14 Jul 2020 @ 10:53am

    "Perhaps next time, the President and his family (and his censorship-happy lawyer) will think twice about trying to ban books"
    If only. There weren't much for negative consequences for trying to ban it.. If anything it was temporarily successful, and if the judge didn't work so unusually quickly here it would have been much more successful. It's not like people do these sort of lawsuits because they think they will win in the end.

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

    • icon
      Thad (profile), 14 Jul 2020 @ 11:00am

      Re:

      If anything it was temporarily successful

      In what way was it temporarily successful?

      It's true that there was a restraining order in effect for a few days, but those days all fell before the planned publication date anyway -- which was subsequently moved up as a result of the publicity generated by the lawsuit.

      The books is being published sooner than it would have been if they hadn't sued.

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

      • icon
        crade (profile), 14 Jul 2020 @ 1:41pm

        Re: Re:

        Well they were at least allowed to publish one day later than they otherwise would have been, but you are right they weren't going to actually do it anyway so it doesn't help trump any in this specific case but might next time. How much extra press they got due to the lawsuit vs just because it's one of the many many things trump is trying to muzzle as opposed to because it's Trump's niece publishing a book about how horrible trump is? Up for debate I guess

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

  • identicon
    Anonymous Coward, 15 Jul 2020 @ 8:47am

    Out of curiosity, what chastisement, what punishment was issued against the judge who granted the ban on publishing in the first place? I guess nothing will happen but being too gutless to standing up to The President, even when the law is known and on your side, just because he's a megalomaniac who, like a child, must have his own way, isn't much of an excuse!

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


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