U.S. courts rarely look kindly on efforts to kill speech critical of powerful public figures.
This matters in the context of Thursday’s news that President Trump and his 2016 campaign have filed a lawsuit to prevent publication of Michael Wolff’s upcoming book, “Fire and Fury: Inside the Trump White House.”
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Scheduled for public release next Tuesday, pre-released excerpts of the book suggest that former senior Trump adviser, Steve Bannon described Donald Trump Jr. as facing looming prosecution. But as I say, while incendiary comments on his family members obviously aren’t likely to bring Trump amusement, the president’s legal effort is almost certainly doomed.
First off, Trump’s lawyers claim that Wolff has engaged in slander and defamation against the president’s inner circle.
However, as I explained in relation to a recent Sarah Palin lawsuit against the New York Times, the civil law burden for proving defamation against public figures is exceptionally high. In this case, because Bannon is standing by his comments about Donald Trump Jr., it seems utterly impossible that Trump’s lawyers will be able to meet that burden on key elements of the book. This remains the situation regardless of other possible inaccuracies in Wolff’s work.
Even where Wolff opines on some more outlandish ideas, Trump’s lawyers will have to show that he had real, serious doubts to the accuracy of what he was saying or believed his claims to be false when he made them. I just don’t see how they can do that here.
Trump’s far stronger argument is his separate claim that Bannon has breached a nondisclosure agreement that he signed while working on the campaign.
Yet one problem here is that the NDA seems overly broad and potentially unreasonable. As ABC News reports, one illustrative element of the NDA Bannon apparently signed notes that “to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach.”
Because Trump is president, however, the courts will place special scrutiny on the NDA, in that it balances vastly in favor of the White House and may negatively affect debate and scrutiny on matters of public concern.
Ultimately, that cuts to the heart of the issue here: Trump is President of the United States. He may believe that this position entitles him to certain protections against criticism, but the courts will see the situation in absolute reverse.
