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Trump v. Trump: Journalists' Urging Source to Breach Nondisclosure Contract Is Constitutionally Protected
From Wednesday's decision [UPDATE: link added] by New York trial court judge Robert R. Reed; (for a similar case from the California courts, though not involving the Trumps, see here):
In this lawsuit, Donald J. Trump …, a former president of the United States, asserts various claims against his niece, Mary L. Trump …, The New York Times Company d/b/a The New York Times … [and] journalists Susanne Craig …, David Barstow … and Russell Buettner …, for their actions related to the publishing of The Times' 2018 article, "Trump Engaged in Suspect Tax Schemes as He Reaped Riches from His Father." …
The crux of plaintiff's claim is that a reporter for The Times caused his niece, Mary Trump, to take 20-year-old tax and financial documents held by her lawyer and disclose them in violation of a 2001 settlement agreement. The Times, it is alleged, then used those documents to publish a lengthy article in 2018 that reported that plaintiff had allegedly participated in dubious tax and other financial schemes during the 1990s. In this action, plaintiff does not specifically dispute the truth of any statements made in the article. Rather, plaintiff alleges that The Times defendants' interaction with Mary Trump resulted in her breach of certain confidentiality provisions of the 2001 settlement agreement, rendering The Times and its journalists liable for tortious interference with contract, aiding and abetting tortious interference with contract, unjust enrichment, and/or negligent supervision. Plaintiff demands $100 million in damages.
Plaintiff's claims against The Times defendants, as an initial matter, fail as a matter of constitutional law. Courts have long recognized that reporters are entitled to engage in legal and ordinary newsgathering activities without fear of tort liability—as these actions are at the very core of protected First Amendment activity.
Plaintiff's claims also fall short inasmuch as they fail to assert the necessary elements of tortious interference, unjust enrichment, and negligent supervision. More particularly, plaintiff's tortious interference claim is dismissed because The Times' purpose in reporting on a story of high public interest constitutes justification as a matter of law. Plaintiff's unjust enrichment claim fails because it is duplicative of his other claims. His claim for negligent supervision, moreover, is dismissed due to the lack of any allegations that The Times reporters committed any wrongful act falling outside of the scope of their normal work duties. Finally, the newly amended anti-SLAPP law mandates that plaintiff pay defendants' attorneys' fees and costs because plaintiff's claims plainly constitute a strategic lawsuit against public participation, and, contrary to plaintiff's argument, New York's anti-SLAPP law is directed to more than just defamation-based lawsuits.
An excerpt from the free speech analysis:
Plaintiff argues that The Times' conduct is not constitutionally protected because its actions were tortious in nature and it is well established that "[c]rimes and torts committed in news gathering are not protected by the First Amendment." According to plaintiff, The Times defendants' activities, even if considered within the scope of activities covered by the New York Constitution, were nonetheless coercive, harassing, vindictive, misleading, purposeful, and in blatant disregard of the plaintiff's contractual rights, and, as such, deserve no protection.
Plaintiff is mistaken. His characterization of The Times' actions as tortious does not, on its own, remove the constitutional protections that are extended to the press during the process of ordinary newsgathering (see, e.g., Nicholas v. Bratton, 376 F Supp 3d 232, 279 [SDNY 2019] ["[E]ntrenched in Supreme Court case law is the principle that the First Amendment's protections for free speech include a constitutionally protected right to gather news"]; Higginbotham v. City of NY, 105 F Supp 3d 369, 379 [SDNY 2015] "[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw" quoting First Nat'l Bank of Bos v. Bellotti, 435 US 765, 783 [1978]). This protection is based on the longstanding recognition that "without some protection for seeking out the news, freedom of the press could be eviscerated" (Branzburg v. Hayes, 408 US 665, 681 [1972])….
Plaintiff principally relies on two cases to support his argument that The Times' conduct qualifies as a tort. Plaintiff argues that The Times' conduct is not constitutionally protected under Le Mistral, Inc. v. Columbia Broadcasting System, a case that established that "[c]rimes and torts committed in news gathering are not protected by the First Amendment" (61 AD2d 491, 494 [1st Dep't 1978]). But other than offering one selective quote from Le Mistral, plaintiff does not engage further with the decision. In Le Mistral, the Appellate Division held that the First Amendment does not protect a defendant, who in order to report on a story, entered the plaintiff's private premises without permission, thereby committing a trespass. Despite numerous requests to leave, the reporter continued recording plaintiff's premises, and later claimed that the First Amendment protected his actions. The Appellate Division, in reviewing the lower court's order, disagreed with the defendant, holding that, considering the facts of the case, the reporter was not allowed to commit a trespass and then rely on the First Amendment to excuse his conduct (id.). Plaintiff also relies on United States v. Sanusi for a similar proposition (813 F Supp 149, 155 [EDNY 1992] [ordering CBS to disclose a videotape made when a reporter illegally trespassed in a criminal defendant's home to film the execution of a warrant)].
Here, plaintiff has not alleged any remotely similar facts. Plaintiff attempts to make an analogy between this action and the trespass cases by arguing that Craig engaged in illegal activity because she "directed" Mary Trump to pilfer documents against the advice of her attorney. But Mary Trump's book—which plaintiff concedes is incorporated into the complaint—demonstrates that Mary Trump's attorney gave her permission to take those documents (opening br. ex. B at 187). More importantly, plaintiff does not dispute this critical point: Mary Trump owned the files she disclosed to The Times, and thus there was nothing wrongful about Craig requesting them (Bronx Jewish Boys v. Uniglobe, Inc., 633 NYS 2d 711, 713 [Sup Ct NY Cnty 1995] ["[A]ttorneys have no possessory rights in the client files. In other words, the file belongs to the client"]). Given these facts, the trespass cases that plaintiff relies on are inapposite.
Plaintiff does not cite a single case where any court, whether state or federal, has held that a reporter is liable for inducing his or her source to breach a confidentiality provision. In fact, New York courts have consistently rejected efforts to impose tort liability on the press based on allegations that a reporter induced a source to breach a non-disclosure agreement. In Highland Capital v. Dow Jones & Company, Inc., the First Department affirmed dismissal of an investment adviser's claim that a Wall Street Journal reporter engaged in tortious conduct by obtaining information from employees bound by non-disclosure agreements (178 AD3d 572, 574 [1st Dep't 2019]). In doing so, the court highlighted that dismissal was appropriate because "defendants' conduct as alleged in the complaint was incidental to the lawful and constitutionally protected process of news gathering and reporting" (Highland Cap., 178 AD3d at 574 citing Bartnicki v. Vopper 532 US 514, 534]). Other New York decisions dismissing tortious interference claims against the press are in accord (see, e.g., Huggins v. NBC, 1996 WL 763337, at [Sup Ct NY Cnty 1996] [dismissing tortious interference claims against NBC because "any interference that occurred was merely incidental to defendants' exercise of their constitutional right to broadcast newsworthy information"])….
And some more from the court's analysis of the elements of the interference with contract tort, which forms an independent basis for the court's decision:
To state a claim for tortious interference, a plaintiff must allege "[i] the existence of a valid contract between the plaintiff and a third party, [ii] defendant's knowledge of that contract, [iii] defendant's intentional procurement of the third-party's breach of the contract without justification, [iv] actual breach of the contract, and [v] damages resulting therefrom." Plaintiff's tortious interference claim is dismissed because The Times defendants' purpose in reporting on a newsworthy story constitutes justification as a matter of law.
Justification provides an absolute defense to a tortious interference claim. New York courts have consistently held that the right to engage in newsgathering activities constitutes such justification. In Povitch, the court dismissed a tortious interference claim against Maury Povitch—a syndicated talk show host—for inducing plaintiff's ex-wife to speak about their divorce proceedings during his talk show, in violation of a confidentiality provision in the couple's divorce settlement. Defendant Povitch was previously put on notice as to the non-disclosure provision but decided to disregard the notice and proceed with the interview. In dismissing the claim against Povitch, the court adopted the defendant's argument that the First Amendment freedom of the press to report on newsworthy subjects is an appropriate justification that will preclude a claim of tortious interference. More specifically, the court declared that it agreed that:
"a broadcaster whose motive and conduct is intended to foster public awareness or debate cannot be found to have engaged in the wrongful or improper conduct required to sustain a claim for interference with contractual relations. Here the broadcaster's first amendment right to broadcast an issue of public importance, its lack of any motive to harm the plaintiff, and the obvious societal interest in encouraging freedom of the press, negate essential elements of the tort."
Previously, and utilizing the same reasoning, the court also dismissed a tortious interference claim against NBC for purportedly inducing the same woman to breach the same confidentiality provision and discuss publicly her divorce proceedings with the same plaintiff (Huggins v. NBC, 1996 WL 763337, at [Sup Ct NY Cty 1996]). Other jurisdictions are in accord with the New York law (see, e.g., Seminole Tribe of Fla v. Times Publ'g Co., 780 So2d 310, 317-18 (Fla Ct App 2001) [dismissing a tortious interference claim against reporters for soliciting tribal employees to reveal confidential documents about the tribe's gambling operations and explaining that reporters' conduct was "routine news gathering"]; Jenni Rivera Enters., LLC v. Latin World Ent Holdings, Inc., 36 Cal App 5th 766, 800 [Ct. App. 2019] [dismissing a tortious interference claim against a broadcaster for reporting confidential information obtained from the plaintiff's former manager in violation of a nondisclosure agreement, because the broadcaster's actions were "not sufficiently 'wrongful' or 'unlawful' to overcome the First Amendment newsgathering and broadcast privileges"]).
In his opposition papers, plaintiff does nothing to contradict or distinguish any of the cited cases. Instead, plaintiff cites a single case, Lindberg v. Dow Jones, in which a federal judge permitted the plaintiff to amend his complaint as it relates to a tortious interference claim, on the basis that factual questions may exist regarding whether the defendant publishers' conduct was justified (2021 WL 5450617). In Lindberg, however, the district judge applied the federal pleading standard—not CPLR 3211(g)—and expressly declined to apply the First Department's protection for conduct that is "incidental to the lawful and constitutionally protected process of news gathering and reporting," in favor of a balancing test set forth in Jews for Jesus v. Jewish Cmty Rels Council (Lindberg, 2021 WL 5450617 at n.92).
This court, however, must, and will apply the reasoning of the First Department's decision in Highland, which is also in accord with other New York decisions, holding that "the First Amendment freedom of the press to report on newsworthy subjects is an appropriate justification that will preclude a claim of tortious interference." Accordingly, because The Times defendants were undisputedly engaged in routine newsgathering, plaintiff's tortious interference claim is dismissed.
Congratulations to David E. McCraw & Demetri Blaisdell, who represent the NYT Company, and Chris Duffy (Vinson & Elkins) and Thomas S. Leatherbury, who represent David Barstow.
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According to reports about this case, the judge has not let Mary Trump off the hook, only said that the Times is free to ask her to breach her contract.
What about the niece. Does she get off for breach of contract?
“His characterization of The Times’ actions as tortious does not, on its own, remove the constitutional protections that are extended to the press during the process of ordinary newsgathering ”
Of course, as the author of this OP is well aware, the 1st amendment in fact extends no special constitutional protection to the press during the process of ordinary newsgathering. Because the “press” of the 1st amendment is the printing press, not the people who use it professionally.
Of course, this implies that if journalists can get away with inducing somebody to violate a contract, just to collect some information they might publish, so can anybody.
The opinion is a little off. He was applying NY law as interpreted by NY courts. Which apparently do hold that a journalist has a right to induce someone to violate an NDA so that they can publish the information.
I am dubious that the First Amendment requires that result. But since this claim was under NY law, the judge properly applied it.
The distinction might, however, make a difference for awarding fees under the anti-SLAPP statute. See here: https://www.nysenate.gov/legislation/laws/CVR/76-A
Narrowly interpret 1A…broadly interpret 2A. Of course, we had around 500k excess deaths during Covid because gullible white trash fell for disinformation about masks and vaccines so the 1A can be deadly just like the 2A.
It’s proper interpretation in both cases: In both cases, the right belongs to everybody, not some specific group, whether “the press” or “the militia”.
Lord, not this again.
Brett, when you made this specious claim about the use of the word “press” before, I quoted letters from the 1790’s written by Madison and others that clearly used the word “press” to mean “the people who use it professionally,” ie the modern understanding of the term. I’ve also read where others have made the same claim as you, and it is simply wrong.
Take it up with Volokh.
Okay, I will try to dig them up again. I remember finding one after doing a text search on a site where many many Madison letters had been digitized. I quoted them here at least a year ago. I think another one might have been a Jefferson letter. As soon as I can, I’ll look for them, or similar letters.
By the way, I’m not making any argument on the question of how press freedom is interpreted today. I’m just saying this particular “Originalist” argument is unfounded and wrong, as many of them are.
The idea that you are entitled to have the freedom of the press only if you own one is retarded. The NYT printing plant bears no relationship to Ben Franklin’s. And in what way is Julian Assange a lesser figure than Thomas Paine? Madison has nothing relevant to say about this. The right comes from its functionality or it does not exist.
Huh. I don’t read all the articles here, and I don’t read the comments on most of the ones I do read, so I must have missed it.
Could you tell me which letters you are referring to?
Specifically, I’m interested in any where there is the suggestion that ‘the press’ is an exclusive professional class. That just doesn’t seem to be in line with what I do remember reading in the past.
Here is something from the collected Madison Papers, a bit of action from the first Congress, December 9, 1790:
Mr. Madison recommended to the house, to take all the papers, or none. As the object of taking them, was to supply the members with all the information that could be obtained, and at the same time, to give encouragement to the press, which was thought advantageous to the public: both these objects, if they justified the house, in taking any papers, would be best promoted by taking them all. The expence saved, by excluding some, would be too inconsiderable to justify a distinction. The papers being paid for at the public expense, if each member were to select such only as he pleased, their conduct would tend to encourage one press, in preference to another; it would savour of partiality. He hoped, that no distinction would be made.
Madison to Pres. Washington, June 20, 1792:
with regard to the mode, none better occurs than a simple publication in the newspapers. If it were proper to address it through the medium of the general Legislature, there will be no opportunity. Nor does the change of situation seem to admit a recurrence to the State Governments which were the channels used for the former valedictory address. A direct address to the people who are your only constituents, can be made I think most properly through the independent channel of the press, through which they are as a constituent body usually addressed.
Here is part of a letter from Washington to Edmund Randolph, October 21, 1795, addressing a letter Randolph wrote to a newspaper:
As you are no longer an Officer of the government, and propose to submit your vindication to the Public, it is not my desire, nor is it my intention to receive it otherwise than through the medium of the Press. Facts you cannot mistake. and if they are fairly and candidly stated, they will invite no comments.
Should I dig up some more? This originalism stuff is kinda fun!
It Trump were to die, then like 5 years later would there still be 27 news stories a day about him? Is he ever going to fucking go away? Will the media ever get enough?
No. One, he is good for ratings. Whatever you think of Trump, you can’t deny he is entertaining. In a professional-wrestling sense of entertaining.
Two, they believe he is easily beaten by any Democrat. Which is what they thought in 2016.
The difference between 2016 and 2020 is that in 2016, they still thought that what he was campaigning on was unpopular, mistaking their own abhorrence of it for public opinion.
So they tried to kill him off by reporting on what he said. Big mistake. And by the time they figured out it was a mistake, it was too late.
By 2020 they knew better, so they relentlessly censored his statements, and instead of reporting what he said, reported “on” what he’d said. It was virtually impossible for him to talk to the public without hostile intermediation.
I don’t think things have improved since, and he certainly shows no sign of having adapted to the media’s new approach to him.
For 2024 they are trying both tactics. Promote him in the primaries [CNN is having a “town hall” for him already!], then pivot for the general if he gets nominated.
In 2016 a lot of voters thought Trump’s act was just an act, that he’d grow into the job, that the system would constrain him. In 2016 that was no longer possible. Maybe enough people will have forgotten what he was like for him to have a chance in 2024, but he’s constantly reminding them.
It’s thrown in their face every day. They can’t forget.
If anything has changed, his behavior has become worse since he lost the election.
“In 2016 a lot of voters thought Trump’s act was just an act”
Yeah, but those were the voters who voted for Hillary. The ones who voted for Trump were hoping it wasn’t an act.
“Trump’s act was just an act” is what we call a permission structure for voting for Trump. It makes no sense to assert that people who believed this then voted against him anyway. It was entirely about drawing a false equivalence between the two.
You are really, really committed to believing that a majority of Americans are just as far gone as you are. There may be too many such psychopaths, and they all still remain committed to Trump (interesting how I’ve seen less DeSantis praise from you lately), but you are deeply mistaken if you think you know which way the independents are breaking.
Which bit? The act that he was a competent manager who would employ the best people? The act that he was paid for acting as in his own reality show? Rubes.
The act that those who voted for Trump hoped wasn’t an act was the guy who said “They all (illegals) must go!” Then he spent four years slobbering over “dreamers” and H-1Bs and blacks and hispanics and the like. And folding on catch-and-release (until Stay in Mexico cut in, his one real — if temporary — accomplishment) and NOT building a Wall. In 2020 he got more of those, but less of those disaffected from the donor-owned GOP. And he dropped the ball on preventing “absentee ballot” election theft and picking Justices who weren’t establishment hacks.
Exactly no one voted for Trump to get a competent manager. The alternative was Hilary, so anyway none was on offer either way.
So, you claim you didn’t believe his lies about being a great manager but you *did* believe his lies that he could carry out his racist policies effectively? Oops.
No, I didn’t, moron. =I= had almost no hope he would do anything other than move the Overton window after “They all must go!” turned into an OK for Pence’s idiotic touchback immigration amnesty, which happened a week or so after he came down the escalator. What anyone “believed” was not asserted anywhere in what I wrote, but your unwillingness to or incapacity for making distinctions is not a new observation, so further deriding you for that is tedious.
So you, uniquely, were clear-sighted about Trump’s failings, while every other person who voted for him was an idiot.
I’ve already commented on your predilection for leaping to unwarranted nonsense and declared it tedious. But there’s no stopping you from being tedious. I of course have made no claims whatsoever about my uniqueness, merely debunked your ignorant assertions about me.
Of course you haven’t. Lots of people who voted for Trump now claim to have known perfectly well that it wasn’t an act, that he was incompetent and dumb and stupidly belligerent and won because he was willing to say whatever Republican voters wanted him to say and because they were willing to believe him, but had *reasons* for doing it anyway. You’re not unique AT ALL.
‘So they tried to kill him off by reporting on what he said’
Just look at that. This has someone who has completely destroyed their own ability to think. Reporting what someone said was a tactic to kill him off. That’s beautiful.
‘and instead of reporting what he said, reported “on” what he’d said.’
Ah, yes, what a cunning and meaningful change of tactic. Back then, of course, he was in full and absolute control of the news cycle, making the mainstream media dance to his tune.
You are a moron, fully so in your puerile posing. There’s no point in explaining to you what BB said since he was quite clear when he said it,
You just come on here to whine about how you can’t articulate a response?
What I COULD do with a non-moronic interlocutor has nothing to do with what I can be bothered to do with a cretin incapable of even approximating an actual argument.
Now you’re just blustering.
‘So they tried to kill him off by reporting on what he said….and instead of reporting what he said, reported “on” what he’d said.’
The heads-I-win-tails-you-lose structure of this is spectacularly self-supporting.
No, that doesn’t approximate an argument either. It’s merely failed snark based on a stupid refusal to acknowledge what was said.
You just make comment after comment about how you can’t actually respond to the comments you’re responding to.
According to Gallup’s election week poll from 2016, Trump was 42% highly unfavorable, Clinton was 39%. That puts them as the #1 and #2 most unfavorable major party candidates that Gallup has ever recorded. #3 was Barry Goldwater, from 1964, with 26%.
The #3 including third parties was George Wallace, who only scored 32% highly unfavorable.
I hadn’t realized how unpopular those two were historically.
You do realize that elections aren’t entirely candidate-popularity contests, right?
Trump won because voters were sick and tired of the pablum that was all that was on offer otherwise.
So why are you guys still mad that the unpopular guy you elected has only gotten more unpopular?
It’s easy reporting, a consequence of media consolidation and cost-cutting. The media could be doing a lot to advance public understanding if they were reporting on how various red-state efforts to roll back abortion rights, block gender-affirming care, expand employment of children, re-shape public education, etc., are faring – whether for good or ill – but it’s all in shadow right now. Instead we have outlets like the Rolling Stone talking to unnamed sources about Trump’s darker musings behind closed doors. When they’re not busy doing the horse race coverage between Trump and DeSantis.
It’s so tiresome and exhausting, but I can’t un-subscribe multiple times from these people.
Man, if only the media would be MORE partisan in favor of the extreme left. Hardly seems possible, but if they could just find a way they would provide so very much education.
“The media could be doing a lot to advance public understanding if they were reporting on how various red-state efforts to… block gender-affirming care… are faring…”
We don’t know this?
If two and a half years ago then President Trump accepted the decision of the American people, if he had peacefully turn over the office to President Biden, if he had worked with the NARA to tranfers his Presidential papers. Had he settled in at Mar-a-Lago as an elder stateman and quietly advised Republicans, would the media be writing any stories about? Well certainly far fewer. But if he has done that he would not get the attention, nor would he be raking in money.
Raking in money, compared with Biden and Obama and the Clintons? LOL!
You’re implying he’s too incomeptent and stupid to manage even that, whatever *that* is in your corroded brain.
It’s YOUR corroded brain that produced “raking in money”, and then produces a “that”, which is a word I never used but would appear to refer to raking in money. Your brain is truly broken.
Also, this “you’re implying” bit followed by nonsense is a self-discrediting tic of yours.
You’re dissolving into mush. You can’t parse perfectly straighforward sentences and referents.
You are a lying snake with no interest in straightforward sentences or referents. You are to parsing your nonsense as a vampire is to garlic.
You’re a thrice-mewled brindled cat that in the haggard realm of night doth slink in fear the dog to flee.
Why would it need to be “compared” with what others had/had not done?
The assertion that Trump is “raking in money” is meaningless tripe unless compared with his peers. Which it wasn’t until I did so, so it WAS meaningless tripe. Why are you pretending to not understand this?
The man is a billionaire and yet he is asking people to pay his legal bills. Donald Trump has found the perfect con, run as a politician and ask for money. It is perfect, even when he loses he will still have lots of money.
When he wins he has lots of money too, and the amounts you are whining about are chump change for him. It’s Pelosi and Biden and Obama and the Clintons who made their fortunes out of being politicians.
Trump always has to be compared to others because without comparisons to exaggerated or false versions of others and what they’ve done, then it becomes clear exactly what Trump voters voted for.
Nothing I’ve said is exaggerated or false. That’s YOUR lane.
He exaggerated falsely.
So if Julian Asssange perhaps assisted people to steal secret info by paying to induce, that’s ok.
“No, because he was violating the law!”
The Law? As in Congress shall make no law?
“Shut up!”, he explained.
That convincing Trump to break her NDA is OK but suggestions for Manning were not is interesting, but Manning wasn’t paid, so who are you talking about?
Or, more relevantly perhaps, “assisted” by helping him hack the government computers?
That’s not much unlike the “trespassing-before-reporting” cases cited incoherently by Trump’s latest scoop of “pro bono” lawyers in this case…
Assange didn’t assist Manning in any hack of government computers, either. As I recall he suggested Manning NOT do certain things likely to bring what he was doing to others’ attention after Manning approached him. Manning just used the credentials he had, no hacking required.
Assange didn’t trespass anywhere, so I’m not seeing the similarity.