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from the free-speech-v.-prior-restraint dept

Yesterday we wrote about how Charles Harder, representing the President’s brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump’s book “Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man.” We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge’s ruling on the TRO.

In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book’s planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.

S&S is not a party to the settlement agreement. The only basis offered by the plaintiff
to extend the temporary restraining order to S&S are the allegations that S&S “intends to act” on Ms.
Trump’s behalf in causing the publication of the book and that S&S is acting at Ms. Trump’s
direction and in concert with her. However, these allegations are conclusory and not supported by
any specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquish
any of its First Amendment rights (see Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d at
257). Since the predicate for the plaintiff’s application for a temporary restraining order is the
existence of the confidentiality provision of the settlement agreement (and no alternate basis for an
injunction against Ms. Trump is either suggested or apparent), and S&S is not a party to the
settlement agreement, this Court perceives no basis for S&S to be specifically enjoined.

However, it does appear that Simon & Schuster is not out of the woods yet entirely. Apparently the heavily lawyered-up agreement that the Trump family signed 20 years ago did include a clause that does allow for an injunction against “any agent” acting on a signatories’ “behalf” may also be covered by an injunction. But, the judge argues, there is not enough of a briefing record to establish if S&S qualifies. So, while the order directly regarding S&S is lifted, it is possible that following the hearing next week at the (again, lower) Supreme Court regarding the permanent injunction, it could bring S&S back in under that umbrella:

While the plaintiff has alleged, in effect, that S&S is Ms. Trump’s agent, the
evidence submitted is insufficient for this Court to determine whether the plaintiff is likely to
succeed in establishing that claim. So, while the plaintiff is entitled to have the temporary restraining
order bind any agent of the plaintiff, this Court will not name S&S as being such an agent.

So now, the parties get to fight out over the larger permanent injunction next week, which could bring this debate back around again pretty quickly.

It is worth noting that the court also does nod towards the public interest argument for being one reason why an injunction might not be appropriate, but it is only doing so in acknowledging that argument, not tipping one way or the other on it:

The passage of time and changes in circumstances may
have rendered at least some of the restrained information less significant than it was at the time and,
conversely, whatever legitimate public interest there may have been in the family disputes of a real
estate developer and his relatives may be considerably heightened by that real estate developer now
being President of the United States and a current candidate for re-election. Drawing the appropriate
balance may well require in camera review of the book sought to be enjoined. Stated differently, 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.

So… the fight to publish the book will continue next week.

One element in this case that I haven’t seen much talked about, but also does deserve some scrutiny: the decision to have the case filed by Donald Trump’s brother, Robert Trump. This is, somewhat obviously, a flimsy front for the president himself. He’s using the president’s own lawyer, who has represented the president in a bunch of other cases. It appears that the confidentiality agreement was signed on one side by the president, Robert Trump, and their sister Maryanne Trump Barry a former federal judge. While there may be some expediency reasons to try to pretend that this is really on behalf of the less-well-known brother it still seems like an odd choice for multiple reasons.

First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president. But, more importantly, if there are any “damages” from the breach of this agreement, it sure seems like Donald Trump would have the strong argument for those, as opposed to Robert Trump. But, perhaps Harder is hoping that using Robert Trump somehow gets the court not to consider the public interest argument as laid out above — saying that this case is not actually about the private behind the scenes events related to the President of the United States, but rather his much less well known brother. I have trouble seeing that argument passing muster, but who knows. I didn’t think a judge would engage in prior restraint either, and that turned out to be wrong.

Filed Under: 1st amendment, book, donald trump, free speech, injunction, mary trump, new york, prior restraint, robert trump, temporary restraining order
Companies: simon & schuster

Categories: Technology