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.
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.