Trump Threat To Sue Over "Fire & Fury" Includes Bogus Inducement to Breach Claim Re Bannon

by Michael Dorf

When I first learned yesterday that a Trump lawyer had sent a cease-and-desist letter to the author and  publisher of Fire and Fury: Inside the Trump White House, I assumed that it was mostly bluster. Reading the letter confirmed that first impression, but it raises at least one interesting question: Can the author or publisher of a book be held liable for inducing the breach of a nondisclosure agreement (NDA)? After setting forth a few general points, I'll address that question. Spoiler alert: The answer is almost certainly no.

Lawyers, law students, and others may recall that the First Amendment almost categorically forbids so-called prior restraints--that is, judicial orders restraining publication in advance. Writers and publishers can be held liable for defamation and other torts under certain conditions, but absent something like concrete proof of a looming catastrophe, prior restraints cannot be issued. That is the core holding of the Pentagon Papers case, and it confirms just about the only modern First Amendment principle that can without question be traced to the Founding.

Accordingly, one might wonder, how can a writer or publisher have a legal duty to cease and desist from publication? And if they don't, does the letter rest on a fundamental error?

The short answer is that the letter does not threaten to sue to block publication. I believe it is best read  as making a threat: If you don't halt publication, apologize, and take various other actions, Trump will sue you for damages. And so understood, there's no contradiction with the general prohibition on prior restraints. Sure, the threat of post-hoc liability provides incentives not to publish in the first place, which makes post-hoc liability not all that different from prior restraint, but that's a general feature of free speech doctrine, not a Trump-specific oddity.

Note also that as I've summarized the gist of the letter, it makes no promise that Trump won't sue for defamation and on other grounds if the author and publisher do comply with the cease-and-desist demands. Indeed, the letter expressly reserves the right to sue anyway. Presumably, however, Trump would be entitled to less in damages after compliance--assuming any liability at all.

I take no position on whether there is potential liability for defamation here. Because Trump is a public figure/official, he must prove actual malice to recover for libel, but while that standard is high, it's not insurmountable. I suspect the threat to sue is bluster, but one never knows. Trump threatens to sue extremely frequently, but he also sues (and is sued) much more than the average bear.

For the balance of this post I want to address the claim by Trump's cease-and-desist letter that the author and publisher of Fire & Fury are liable for inducing Steve Bannon to breach the NDA that he signed with Trump, his company, and/or his campaign.

Let's begin with the basics. NDAs are not per se unenforceable. True, state contract law may limit the enforceability of an NDA on reasonableness grounds. So too, the First Amendment might stand as a bar to an overly broad NDA that covers matters of public concern. I assume that the Bannon/Trump NDA is overly broad, but, not having seen it, I'll also assume that it is at least partly enforceable.

Yet even parts of the NDA that are enforceable against Bannon are almost certainly unenforceable against the author and publisher of Fire & Fury, who are not themselves parties to the NDA.  I say "almost certainly" rather than "certainly" because there is no SCOTUS case 100% on point, but I am nonetheless very confident of my conclusion. Here's why:

(1) The cease-and-desist letter cites cases and other legal authority for just about every proposition it contains, except that it cites no authority whatsoever for the claim that a writer or publisher can be held liable for inducing the breach of an NDA signed by a third party. Presumably if there were favorable authority, Trump's lawyer would have cited it.

(2) That's consistent with my own research. I found no NY cases supporting such liability. (The cease-and-desist letter assumes that NY law applies.)

(3) Indeed, a 1998 article in the Federal Communications Law Journal, relying on a Newsday story, states: "libel specialists apparently are unaware of a case in which a media defendant has been held liable for speaking to a party to a nondisclosure agreement." The article goes on to explain why there should not be such liability.

(4) Although there is no SCOTUS precedent 100% on point, what we do have counts strongly against the Trump position here. A newspaper, reporter, author, or publisher can be held liable, consistent with the First Amendment, for the breach of an NDA to which it is a party, as the SCOTUS held in 1991. However, the 2001 case of Bartnicki v. Vopper is all but fatal to inducement claims. There the defendant received and played on the air an illegally recorded conversation. He did not participate in the illegal recording but knew or should have known that it was illegally recorded. The Supreme Court held that the First Amendment barred post-hoc civil liability.

Bartnicki is not exactly on point because it involved unlawful recording rather than an NDA, but that distinction seems to render Trump's claim especially weak. If the public interest in information is sufficiently great to overcome federal and state criminal and civil prohibitions on intercepting communications, surely it is sufficiently great to overcome whatever private contractual interest an NDA serves.

To be sure, one distinction with Bartnicki cuts in the other direction. The radio commentator in that case played no role in the initial illegality, only acquiring the recording after the fact. Here, by contrast, Fire & Fury author Michael Wolff did participate in the act that violated Bannon's NDA.

But that distinction does not seem sufficient to make the general principle inapplicable. Underlying Pentagon Papers and Bartnicki is the idea that it is not the press's job to worry about other people breaching their legal duties: If information in the public interest can be obtained, reporters should be allowed to go out and get it, then distribute it to the public. That idea appears to be controlling here as well. It was Bannon's job, not Wolff's, to worry about the NDA. The fact that there is no legal authority to the contrary confirms the impression.

Accordingly, I conclude that if Trump were to sue--a big IF--his claim that the author and publisher of Fire & Fury induced Bannon to breach his NDA would not survive a motion to dismiss.