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