The nondisclosure agreement the president would like enforced violates the First Amendment.
If President Donald Trump would actually sue Steve Bannon for violating a nondisclosure agreement made with his campaign, it would be great for the freedom of speech.
That may sound strange, because Trump’s threatened lawsuit is precisely aimed to silence Bannon and other potential leakers who worked on the campaign. Bannon has been extensively quoted in excerpts published this week from the journalist Michael Wolff’s new book, “Fire and Fury: Inside the Trump White House.”
But Trump’s suit would almost certainly fail, and that’s why it would serve free speech. Faced with an attempt to suppress speech that is so plainly of public importance and interest, a judge would have little choice but to conclude that the First Amendment disallows enforcement of an NDA made with a presidential campaign. The legal precedent created — and publicity it received — would be a blow to the bullying use of the courts to silence speech and a boon to free expression.
Start with Trump’s threat. His lawyer, Charles Harder — who successfully represented Hulk Hogan in his invasion of privacy suit against Gawker — wrote to Bannon on Wednesday that he had breached his NDA with the Trump campaign by “communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company.”
What this tells us: Bannon signed an NDA with the Trump campaign, which in its corporate form was known as Donald J. Trump for President Inc. The NDA apparently prohibited Bannon — and presumably all other campaign employees who signed the same form — from disclosing confidential information.
But that’s not all. The agreement also seems to have prohibited employees from making “disparaging statements” about Trump or his family.
Like most such NDAs, the agreement stretched into the future, beyond the campaign. And it must have provided for money damages for talking out of school, because that’s what Harder has threatened Bannon with seeking.
For many corporations and their employees or contractors, such NDAs are business as usual — and for the most part, that’s OK. Private companies need to keep secrets.
As a matter of basic autonomy, parties should have the right to agree to keep secrets secret and even not criticize former partners in certain respects. And it makes sense for the courts to enforce such private agreements, the way they generally enforce private contracts that don’t violate public policy.
The trouble starts when the courts’ enforcement would have the effect of preventing speech on matters of vital public interest and importance. An agreement that prohibits employees from disclosing information that would save lives should plainly be unenforceable. The same should be true of an agreement that would conceal illegal or immoral corporate behavior.
The argument against enforcement gets stronger still when the information that the agreement seeks to suppress includes the core political speech that the First Amendment protects. That includes the character and qualities of political candidates and public office holders — the kind of information that campaign employees routinely acquire and are in position to disclose.
The constitutional logic is straightforward: The courts shouldn’t be in the business of suppressing political speech that the speaker has a right to express and the public has a strong interest to know.
This brings us back to Bannon’s comments to Wolff. Bannon has every First Amendment right to say that Donald Trump Jr.’s meeting with a Russian lawyer in June 2016 was “treasonous.” That’s a political opinion about one of the pressing issues of the day. Having served on the Trump campaign should not prevent Bannon from stating his opinion in the future.
What’s more, Bannon’s apparent speculation that Trump Jr. must have brought the Russian lawyer to see Trump is simply his opinion — also protected by his freedom of speech.
Indeed, the opinions of insiders like Bannon are especially valuable to the public in a democracy, because they are in a position to know the principals better than anyone else.
In a world of NDA restrictions on former campaign officials, the government (via the courts) would be in the business of policing political criticism. That’s not compatible with democracy.
All this would be blindingly obvious to any judge in America, I would think — or at least hope. A Trump suit against Bannon would thus backfire, in a good way.
It would demonstrate to the public how dangerous NDAs can be when deployed against whistle-blowers. It would essentially force the court to say that an NDA can’t be enforced against campaign employees who want to criticize the conduct of former employers, who may now be public officials.
You might think that becoming the victim of a Trump bullying lawsuit couldn’t happen to a nicer guy than Bannon. But remember, that’s why we have free speech.
~Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University.