Should Catch-and-Kill Agreements Be Enforceable?
by Michael C. Dorf
Just over a couple of weeks ago, I asked, in an essay on this blog: How plausible is the Melania defense? In order to elevate the New York crime of falsifying a business record from a misdemeanor to a felony, I noted, the prosecution must prove that the defendant falsified the record for the purpose of covering up another crime. I explained that Donald Trump's lawyers could be expected to argue (as some of his defenders had been saying publicly) that Trump's motivation was personal: people who have extramarital affairs don't want their spouses to find out; thus, Trump could claim that he wasn't attempting to disguise Michael Cohen's election law crimes but only to keep his wife from learning of his affair. As I explained in the essay, this defense would not be very plausible, so long as covering up a crime was a motive, even if there also was a personal marital motive.
The actual indictment unsealed on Tuesday makes clear that what I've called the "Melania defense" won't fly on the facts. The direct payments to Stormy Daniels (aka "Woman 1" in the indictment and "Stephanie Clifford" in real life) only came about after a deal to purchase the rights to the Daniels story from the National Enquirer (via AMI CEO David Pecker) fell through. That part of the narrative accompanying the charging document states that there is an audio recording of this turn of events. So there's no way that the Melania defense can succeed.
To be sure, there are other possible lines of defense and attack for Trump and his lawyers. Although DA Bragg says that other people have been charged and convicted for felony business record falsification using federal crimes as the underlying crime being covered up, the NY Court of Appeals has never ruled on whether that's permissible. I don't see a good reason why it shouldn't be. The statute says "another crime"--which is generic. Perhaps significantly, New York's penal law generally lists "offenses," so the term "crime" does not seem limited to state offenses. And anyway, it appears that Bragg's office will also present evidence that one of the other crimes was state tax fraud, for which the state/federal issue doesn't arise.
In any event, let's put aside the specifics of the case against Trump to focus on what was supposed to be Plan A: Pecker, via the National Enquirer/AMI was going to buy the rights to unflattering stories about Trump not for the purpose of publishing them but to "catch and kill" those stories. Should catch-and-kill agreements be enforceable?
Let's contextualize that question with a scenario. Steve works as a truck driver for Toxochem Corp. His boss instructs him to drive a team of Toxochem employees late at night to a state park. He does so and, to his horror, sees them dump toxic chemicals in the river. He records video on his phone. Steve could notify the EPA or other government authorities, but he's struggling to make ends meet, so he contacts a reporter for a local news station, WTCM. The station offers to pay Steve $10,000 for the exclusive rights to his story. He signs a contract agreeing to the deal. Unbeknownst to Steve, the owner of WTCM is a friend and political ally of the CEO of Toxochem. The station pays Steve but never airs the story because it is deploying catch-and-kill. A few months go by and Steve wonders why the story hasn't aired. He tells his story and provides his video to a reporter for the local newspaper, which runs a story and posts the video in its website.
If WTCM sues Steve for breach of contract, should it recover? One might think that the First Amendment renders the contract unenforceable. After all, if WTCM succeeds, its damages will be predicated on Steve's having provided truthful information to the media about a matter of undoubted public interest. And yet, a 1991 Supreme Court case--Cohen v. Cowles Media--suggests that Steve will lose. There SCOTUS allowed liability for a newspaper that identified its source despite having promised him confidentiality. Lower courts have relied on Cohen and other cases to hold that the First Amendment permits the enforcement of nondisclosure agreements (NDAs).
However, part of the rationale for Cohen is inconsistent with later (and also earlier) cases. SCOTUS said in Cohen that promissory estoppel--the quasi-contract doctrine on which Cohen relied--was a content-neutral policy of state law, so its application in a media case did not trigger First Amendment scrutiny, in the same way that the application of other general laws (taxes, antitrust, etc.) don't trigger any special First Amendment scrutiny when they happen to apply to news organizations. Yet the dissent noted that the Court had sometimes concluded otherwise. The dissent cited Hustler v. Falwell, where the fact that intentional infliction of emotional distress is not targeted at speech did not prevent the Court from applying a heightened First Amendment standard where the tort recovery was sought from a publication. After Cohen, in Holder v. Humanitarian Law Project, the Court was even more explicit in disregarding the content-neutral nature of the general heading of law. (At the time, I criticized the ruling for doing so, but this approach is by now pretty well established.)
So if Cohen's rationale is no longer good law, perhaps its holding shouldn't be either. To enforce an NDA--in an action for damages for breach and certainly in a suit for injunctive relief--perhaps the First Amendment should be construed to require a heightened showing. So argues a thoughtful 2019 student Note in the William & Mary Bill of Rights Journal.
Moreover, even if NDAs in general aren't subject to heightened scrutiny, perhaps catch-and-kill agreements should be. After all, the presumption behind a catch-and-kill agreement is that someone (Steve in my hypothetical; Stormy Daniels, Karen McDougal, and doorman Dino Sajudin in the Trump case) was on the verge of providing a newsworthy story to the media and perhaps even thought they were doing so (as my hypothetical Steve did) only for a private censor to block it. To be sure, a rule allowing most NDAs but not catch-and-kill NDAs would be relatively easy to evade: once the catcher catches the story, the contract could simply be written as an NDA. If the line between a standard NDA and a catch-and-kill agreement proves impossible to draw and maintain, my preference would be to make all NDAs subject to a First Amendment defense.
Even if the federal First Amendment imposes no limits on NDAs or catch-and-kill agreements, state constitutional law might. So too could state contract law render NDAs or catch-and-kill agreements void as against public policy absent some heightened showing (such as a special concern for intimate privacy, protection of trade secrets, etc.). I would favor that as a backup to a First Amendment overlay, but such a rule could be easily evaded through a choice-of-law clause specifying the law of a state that fully enforces NDAs and catch-and-kill agreements. In a world with a responsible Congress, I'd propose a federal statute requiring that NDAs affecting interstate commerce and on matters of public concern be unenforceable absent a showing of some very good reason for privacy/secrecy, but in our actual world, I'll stop here.