Despite these alarming developments, all is not lost for free speech and government transparency. When Trump ascended to the presidency, he gained more than new resources and incentives to manipulate or suppress information. As a state actor, he also acquired the burden of operating under the First Amendment. There is indeed ample First Amendment precedent under which the court can and should find Wolkoffs agreement unenforceable. As a foundational matter, the Supreme Court has, time and again, deemed speech about government officials and public figures at the very heart of the First Amendment, extolling our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The Justice Departments own arguments about the centrality of the first ladys office to the presidency place Wolkoffs revelations squarely at the First Amendments core. More so, presidents, including this one, routinely rely on their spouses for political advantage. Through everything from policy initiatives to, yes, those darned Christmas decorations, first ladies have traditionally served as political assets to presidents. This reality, too, places first spouses words and activities well within the realm of public debate that the Supreme Court deems central to the First Amendment.

Because First Amendment protections serve the public as well as the speaker, they cannot simply be signed away through an employment contract, whether for a paid or volunteer position. The Supreme Court has repeatedly explained that public employers do not have an unlimited right to fire or otherwise discipline employees for speaking, as citizens, on matters of public concern. The Court has imposed such limits partly because speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.

Orly Lobel: Trumps extreme NDAs

The agreement that the Justice Department seeks to enforce here extends considerably further than workplace discipline. It purports to subject the signer to restraints on speech about their White House employment for at least the length of the presidents term, and possibly for the rest of the signers life. Courts have only ever upheld such agreements, and allowed constructive trusts to be imposed as remedies for their violation, in the context of national-security information. As noted above, even those decisions are controversial, and such NDAs are currently facing a new set of legal challenges.

The Trump family, in short, simply cannot have it both ways. They cannot serve as Americas first family, with all the fame, power, and resources that entails, and still control their image with the domineering tactics that they employed as private citizens. For better or worse, the goings-on of Donald and Melania Trump are now Americas business. And in this business, the founding document is the Constitution.

This story is part of the project The Battle for the Constitution, in partnership with the National Constitution Center.

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Stephanie Wolkoffs Revelations Are Exactly What the First Amendment Should Protect - The Atlantic