Saturday, March 17, 2018

Stormy Daniels and New York Times Co. v. Sullivan

Mark Graber

Stormy Daniels’ effort to talk about her affair with Donald Trump is better protected by the First Amendment than contract law.  The Supreme Court in New York Times Co. v. Sullivan (1964) limited the power of states to pass tort laws that chill or suppress speech about the qualities of public officials or candidates for public office.  The specific decision in Sullivan was that the constitutional interest in vigorous debate over the vices and virtues of public officials constitutionally outweighs the interest of those officials in suppressing negligently false speech about themselves. If the Constitution prohibits state tort laws from sanctioning negligently false statements about public officials or candidates for public office, then the same First Amendment plainly prohibits state contract law from sanctioning true statements about public officials and candidates for public office. Public officials and candidates for office should no more be able to suppress criticism of their behavior through non-disclosure agreements than they are through libel laws.

Sullivan provides Stormy Daniels with a strong constitutional foundation for having her non-disclosure agreement with Donald Trump or Trump’s representatives declared judicially unenforceable.  The Supreme Court has repeatedly declared that the First Amendment primarily protects the social interest in a robust marketplace of ideas.  The Roberts Court protects the First Amendment rights of corporations because they provide ideas and information to the public, not because corporations in themselves have political rights.  State laws that sanction speech subject to a non-disclosure agreement and state laws that sanction negligently false statements both chill speech. The public interest in learning about the information being suppressed by non-disclosure agreements is clearly as great, if not greater, than the public interest in obtaining negligently false statements.  As important, no public interest supports allowing public officials or candidates for public office to buy off persons with potentially damaging information.

Contracts against public policy are void, even when no one bargained for an illegal action.  Common law courts refused to enforce promises not to marry.  The Supreme Court of the United States in Shelley v. Kraemer (1948) refused to enforce an agreement among white homeowners never sell to a person of color.  Sullivan declares that public policy in the United States encourages speech about public officials and candidates for public office.  Non-disclosure agreements are inconsistent with the policy when they prevent speech on matters of vital public interest solely because that speech may place powerful people in a bad light. The alternative would allow the most affluent citizens, who already have the right to buy as much favorable speech as they wish, to buy the right to silence as much unfavorable speech as they desire. 

UPDATE: Daniel Solove and Neil Richards published an excellent piece in the 2009 Columbia Law Review on when ordinary tort and contract law should be allowed to restrict speech.  They have thought far more seriously about the subject than I have (or intend to do).  I nevertheless confess that I would fine-tune their analysis of non-disclosure agreements.  I think there is a public interest in having certain conversations remain confidential, so the First Amendment does not trump what Trump tells his doctor or lawyer (or as in a Supreme Court case, a journalistic promise of confidentiality in order to receive certain information.  But I think a there is a real First Amendment problem in allowing persons to use non-disclosure agreements to buy up critical speech.  

UPDATE REDUX:  I do not think Jack Balkin and I disagree very much, and probably not on how most particular disputes ought to be resolved.  We agree that non-disclosure agreements are judicially enforceable when legitimate reasons exist for non-disclosure, such as medical practice, religious confessions, the need for journalists to obtain information for anonymous sources.  Ordinary privacy rights are not at issue, since good reasons exist for those privacy rights.  We also agree that affluent citizens cannot buy up critical or damaging speech in the absence of some good reason for privacy.  Jack thinks this can be resolved purely within contract law.  I think the public policy exception in contract law in these situations only makes sense in light of the public policy expressed by the First Amendment or the Constitution that, for example, in a dictatorship that recognized contract law, the ruling figures would have a right to buy up critical or damaging speech.

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