An intermediate New York State appeals court judge late Wednesday cleared a short, narrow legal path for the publication of a book written by Mary L. Trump, President Donald Trump’s niece.
The book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man, is scheduled for release on July 28, 2020 by publisher Simon & Schuster. The Trump family, led by the president’s brother Robert S. Trump, is seeking to prevent the book from being published by holding Mary L. Trump to agreements she made when family patriarch Fred C. Trump, the president’s father, died. Mary was among those who received part of the family estate.
Presiding Justice Alan D. Scheinkman of the New York State Supreme Court Appellate Division, Second Department, said he agreed only in part with Mary L. Trump’s argument that she should be able to publish her book. In so doing, Scheinkman barely discussed the broad First Amendment arguments proffered by free speech advocates in the case. Indeed, the critical legal phrase “prior restraint” appears but once in the document.
“While Ms. Trump unquestionably possesses the same First Amendment expressive rights belonging to all Americans, she also possesses the right to enter into contracts, including the right to contract away her First Amendment rights,” Scheinkman wrote. “Parties are free to limit their First Amendment rights by contract . . . [and] may effectively relinquish First Amendment rights by executing a secrecy agreement in which the party receives significant benefits” (internal citations omitted).
Scheinkman reasoned that is what happened in this case:
Here, the plaintiff has presented evidence that Ms. Trump, in exchange for valuable consideration, voluntarily entered into a settlement agreement to resolve contested litigation. In that settlement agreement, she agreed not to publish a book concerning the litigation or her relationship with the adverse parties, the plaintiff, Donald J. Trump, and Maryanne Trump Barry, without their consent. The settlement agreement reflects that Ms. Trump was represented by counsel and, indeed, her counsel themselves also agreed to confidentiality. The Trump family was well known in New York, and the plaintiff asserts that the litigation over the family’s estate had received extensive publicity. This Court perceives it to be reasonable for a well-known and prominent family to collectively agree, as part of the settlement of a highly-publicized internal family dispute, to confidentiality provisions under which all parties agree to maintain family privacy regarding intimate family matters. While the contents of the proposed book are unknown, from the title and from the statements attributed to Ms. Trump it appears that the content of the book touches upon subjects that may be within the reach of the confidentiality provision of the settlement agreement.
The judge said his true legal issue at this “preliminary stage” in the litigation was the trial court judge’s issuance of a restraining order leading up to a hearing “which is less than 10 days away.”
“The Supreme Court may revisit the restraining order upon its timely review of the defendants’ submissions and its conduct of further proceedings,” Scheinkman said.
Scheinkman’s decision is typical of high court thinking: it limited its scope of review to a few narrow legal issues and told a lower court judge to build the record for further future examination.
The decision also let Simon & Schuster off the hook — barely. While the agreement between Mary L. Trump and the rest of the Trump family prohibited any “agent” from doing what a party to the agreement could not independently do his or herself, Scheinkman ruled that it was unclear whether Simon & Schuster, as an independent publisher making its own decisions about its own business, met the definition of an “agent” to Mary L. Trump.
Scheinkman ruled to vacate the temporary restraining order against Simon & Schuster and to modify the order against Mary L. Trump. Thus, Simon and Schuster is now free to do what it wishes — at least leading up to the next trial court hearing. As to Mary L. Trump, the order restraining her conduct now reads as follows:
ORDERED, that pending the hearing of Petitioner Robert S. Trump’s within motion for a preliminary injunction, Mary L. Trump, together with any agent, is hereby temporarily enjoined and restrained, pursuant to CPLR 6313, from publishing, printing or distributing any book or any portions thereof including but not limited to the book entitled: ‘Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man’, in any medium containing descriptions or accounts of MaryL. Trump’s relationship with Robert S. Trump, Donald Trump or Maryanne Trump Barry.
The justice’s decision says the promised book is said to contain “an insider’s perspective of countless holiday meals, family interactions, and family events” involving the president and his sister, Maryanne Trump Barry, who was a federal judge (internal punctuation removed).
What should the public expect going forward? Scheinkman left much up to the lower trial court judge, but added this:
It bears noting that, while parties are free to enter into confidentiality agreements, courts are not necessarily obligated to specifically enforce them. Whether to issue an injunction is a matter of equity. Confidentiality agreements are alternatively enforceable through the imposition of money damages. In determining whether to grant specific performance thorough [sic] the use of the equitable remedy of an injunction, courts should balance the legitimate interests of the party seeking to enforce the contract with other legitimate interests, including, especially in this context, the public interest.
[ . . . ]
The confidentiality agreement here does not have any temporal or geographic limitation. 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.
Scheinkman was appointed to his current role by Gov. Andrew Cuomo, a Democrat who has oftentimes been at odds with President Trump.
Read the judge’s decision and order below; it contains relevant language from the Trump family agreements from the time of Fred C. Trump’s death:
[photo by Andrew Renneisen/Getty Images]
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