Judge Hal B. Greenwald ordered that Mary Trump, Donald Trump’s niece, will not be prevented by her 19-year-old confidentiality agreement from publicizing her book. The book surveys President Trump’s flawed mentality, and his ill-use of his family. The ruling came out at 7 p.m. this evening, just in time for the release of the book tomorrow.
The book, “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man,” is expected to be a blockbuster combination. It will feature Mary Trump’s revelations about Trump’s development and his nastiness toward his niece and family. Also, Mary Trump practices as a clinical psychologist. The book will feature her analysis of President Trump’s personal infused with her uniquely close vantage, while it is not hidden that she presumably has complex reasons for writing it.. .
This ruling was not a foregone conclusion. Mary Trump had signed a confidentiality agreement as part of a 2001 settlement of bitter family litigation. Judge Greenwald had issued temporary restraining orders blocking her and her publisher, Simon & Schuster, from publishing or distributing the book. A judge of the Appellate Division quickly terminated the order with respect to the publisher, allowing it to proceed with printing and publishing over 600,000 copies. However, the Trump family had contested whether to renew the order against author Mary Trump from speaking out. His ruling opens the way for Mary Trump to become a blockbuster media exponent herself of her book’s revelations and analysis.
The judge said the confidentiality clauses in the 2001 agreement, “viewed in the context of the current Trump family circumstances in 2020, would ‘…offend public policy as a prior restraint on protected speech…’” Although the main general interest in this matter concerns the substantive content of her writing and statements, the case and the judge’s ruling deserves attention.
Judge Greenwald’s use of the key term, that blocking her would be a “prior restraint on protected speech” taps a rich vein in First Amendment law. A “prior restraint” is a court order chronologically in advance of the speech in question. It orders the entirety of the speech not even to be made. It silences the speaker, without the speech being concretely put out without the actual text being known.
Classic examples of prior restraints were the court orders obtained by the Nixon Administration against the publication by the New York Times NYT and the Washington Post of the famous “Pentagon Papers” about how three administrations took the country into the Vietnam War. The orders were dissolved by the Supreme Court, with opinions including attention to the doctrine against prior restraints.
An aspect so obvious it may escape attention is that Judge Greenwald called Mary Trump’s statements “protected speech” and viewed the 2001 confidentiality clauses “in the context of the current Trump family circumstances.” It is not at all completely specious to understand the different perspectives for viewing Mary Trump’s legal situation.
After all, Judge Greenwald himself started out issuing a temporary restraining order against Mary Trump. From the Donald Trump side, the 2001 agreement could have been viewed as simply a contract that Mary Trump was seeking to breach. Explaining the argument, Roger J. Bernstein, an experienced New York State litigator, noted that in a run-of-the-mill situation, a “contract dispute between two private parties, would not be decided on the basis of public interest considerations.” Here, though the case of course involved “larger circumstances.,” he said. He added that the publisher’s freedom to publish the book meant that there was no longer any confidentiality to protect.
The title of the book refers to President Trump as “the World’s Most Dangerous Man.” Whether that is reality or hyperbole probably varies with whom one asks. However, significantly, the title reinforces the strength of Judge Greenwald’s order. The 2020 context, not the 2001 context, governs a case like this one.