Trump’s gag orders undermine the First Amendment

With the filing of an arbitration action against former aide Omarosa Manigault Newman by his campaign, Donald Trump ruptures yet another set of legal norms that every president before him respected. This time, he seeks to enforce a contractual “gag order” that has nothing to do with classified information. For a number of reasons, this sideshow should flop.

Let’s get one thing straight for starters. Federal employees with access to classified information sign federal standard form 312-13, which amounts to a pledge to “never divulge classified information to anyone” unless authorized. A breach can trigger “the termination of any security clearances[;] removal from any position of special confidence and trust requiring such clearances; or termination of . . . employment.” All of this is governed by federal law. Violations also can lead to criminal prosecutions under the United States Code. But it can’t automatically trigger the payment of millions in money damages from an employee’s pocket to the federal treasury — let alone to the Trump campaign.

{mosads}As far as we know, moreover, the Manigault Newman dispute has nothing to do with unauthorized disclosure of classified information. In exchange for $15,000 per month, she signed a document agreeing “not to demean or disparage publicly, in any form or through any medium, the Campaign, Mr. Trump, Mr. Pence, any Trump or Pence Company, any Trump or Pence Family Member, or any Trump or Pence Family Member Company or any asset if the foregoing.” Manigault Newman was reportedly not the only person who signed such a thing. Trump also required numerous White House staff members to enter into similar non-disclosure agreements—known in the private sector as “NDAs” — as a condition of employment with the federal government. The NDAs are said to contain a $10 million stipulated penalty for violations, as well as mandatory arbitration.

This is unprecedented.

First, unlike for standard form 312-13, there is no federal law authorizing the executive branch to enter into private-sector NDAs with federal employees — let alone agreements purporting to trigger multi-million dollar liquidated damages awards for alleged violations.

Second, the Trump campaign’s attempt to compel arbitration for resolution of any NDA-related disputes with former federal employees is problematic, for a number of reasons. An arbitration clause is an agreement to waive access to courts as a means of minimizing the time and expense of litigation. Usually, such clauses benefit big corporations via economies of scale — every plane ticket or hotel room booked through Expedia has one, for example — and even though “little people” can’t meaningfully negotiate arbitration clauses, they can be binding.

But precisely because they are contracts, arbitration clauses can be deemed unenforceable. A contract can be so unfair that a court won’t honor it. We saw the potential for this with Stormy Daniels’s NDA, which contains an outrageously high provision for liquidated damages — $1 million per violation. Under basic contract law principles, moreover, Trump has to show that any damages amount to a reasonable estimation of the harm actually incurred in the event of a breach. Thus, Manigault Newman’s publication of a “tell-all” book doesn’t automatically mean she has to pay him a penny. If the information disclosed is already out in the public sphere through other sources, it’s also a “nothing burger” because the alleged violation wouldn’t itself have harmed Trump. 

As a New York State court recently held in denying the Trump campaign’s motion to compel arbitration of suit brought by a former campaign staffer, moreover, an NDA is only so good as its terms; in that case, the court found “[t]here is simply no way to construe this arbitration clause in this agreement to prevent plaintiff from pursuing harassment claims in court.”

Third, to the extent that Trump’s NDA attempts to ban what amounts to political speech, there are strong First Amendment protections in play. Trump is now president, so when he takes steps to crack down on speech that criticizes him, it has constitutional implications that didn’t exist when he was a candidate.

To be sure, as indicated by the firing of former FBI Agent Peter Strzok over anti-Trump text messages, speech by government employees on-the-job and in the scope of official duties is less protected by the Constitution. But even government employees’ speech gets First Amendment armor if it bears on “matters of public concern” and there is no showing that it harmed government interests.

Among other things, Manigalt Neuman’s book charges Trump with being racist and having “mentally declined,” while claiming that Secretary of Education Betsy DeVos is “woefully inadequate and not equipped for her job.” Whatever the public chooses to believe about Manigault Neuman’s claims, the Supreme Court has stated that “there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Or put another way, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.” Her book qualifies.

Kim Wehle is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. Her forthcoming book, “Debatable: A How-To Guide to the Constitution,” will be published by HarperCollins in the Spring of 2019. Follow her on Twitter @kim_wehle.