Strictly Legal: Partial Victory for the First Amendment in Trump Book Dispute – The Cincinnati Enquirer

Jack Greiner Published 11:48 a.m. ET July 7, 2020 | Updated 11:48 a.m. ET July 7, 2020

The parties in litigation over the publication of a tell-all book written by Donald Trumps niece each got a partial victory in a recent decision by a New York trial court. But the ultimate losers are the members of the Trump family seeking to stop publication of the book later this month.

The issue in the case is a non-disclosure agreementthat the family of Fred Trump executed in connection with Fred Trumps estate. Fred Trump was the brother of Donald, Robert and Mary Trump. The books author is Mary Trump, Freds daughter and the niece of Donald, Robert and Mary.

When the family settled Fred Trumps estate in 2001 (he died atage42 from complications arising from alcoholism) the descendants (including Freds daughter Mary) signed an agreement prohibiting them from publishing a book about the family relationships. Specifically, the agreement provided:

[Mary Trump] shall not disclose any of the terms of this Agreement and Stipulation, and in addition shall not directly or indirectly publish or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalized or not, concerning their litigation or relationship with the Proponents/Defendants or their litigation involving the Estate of FRED C. TRUMP and the Estate of MARY ANNE TRUMP, or assist or provide information to others in connection therewith. . . . In the event such breach occurs, [Mary Trump], as well as their counsel, hereby consent to the granting of a temporary or permanent injunction against them (or against any agent acting in their behalf) by any court of competent jurisdiction prohibiting them (or their agent) from violating the terms of this Paragraph.

On June 15, 2020, Ms. Trump announced the publication of a book entitled Too Much and Never Enough: How My Family Created the Worlds Most Dangerous Man, which is scheduled for release on July 28, 2020. On June 30, Robert Trump, Marys uncleand Donald Trumps brother obtained a temporary restraining order from a New York Probate Court which prohibited Ms. Trump and her publisher Simon & Schuster, from publishing, printing or distributing any book or any portions thereof including but not limited to the book entitled: Too Much and Never Enough, How My Family Created the Worlds Most Dangerous Man, in any medium containing descriptions or accounts of [Ms. Trumps] relationship with [Robert Trump], Donald Trump, or Maryanne Trump Barry.

Mary Trump and Simon & Schuster asked a New York trial court to vacate the TRO. The trial court refused Marys request to vacate the TRO, at least for the time being. It found that while Mary Trump generally has a First Amendment right to publish her thoughts, she also has a right to enter a contract restricting that right. The court noted, however, that the interests underlying the non-disclosure agreement could shift over time so that the public interest in the book could outweigh the contractual interests. As the court noted, 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. The court noted that it may be necessary to review the book in camera before making a final ruling on the restraining order. But for now, the court kept the order as to Mary in place.

But the court took a different view toward Simon & Schuster. It noted that Simon & Schuster was not a party to the contract, and thus never agreed to the non-disclosure terms. The court also rejected the argument that Simon & Schuster is Marys agent and thus comes under the contracts language permitting an injunction against Marys agent. The term agent in the law means one who acts on behalf of another person and at that persons direction. Typically an author employs an agent to negotiate with the publisher. This demonstrates that the publisher and the author are on opposite sides of contract and neither is the agent for the other. Given that Robert Trumps only basis for the restraining order was the contract, there was no basis to restrain Simon & Schuster.

This decision may end the effort to stop the release of the book. Once the book is released, the horse has left the barn, as the Trump Administration learned in its efforts to stop the publication of John Boltons book. Of course, all is not lost for Robert Trump. He can seek monetary damages against Mary. But in all likelihood, the public will be reading her book at the beach later this summer.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Partial Victory for the First Amendment in Trump Book Dispute - The Cincinnati Enquirer