Donald Trump’s Legal Assault on Free Speech

While President Donald Trump has made some positive steps toward protecting religious liberty, I have expressed concern about his views of other inalienable rights enshrined by the First Amendment namely free speech and freedom of the press.

He has expressed a willingness to restrict speech he views unfavorably. With the expected release of Fire and Fury: Inside the Trump White House by Michael Wolff, we have seen that inclination once again.

Trump’s lawyers sent a cease-and-desist letter to the book’s publisher, The New York Times reports:

In an 11-page letter, the president’s lawyer said the book, “Fire and Fury: Inside the Trump White House,” by Michael Wolff, as excerpted in a magazine article, includes false statements about Mr. Trump that “give rise to claims for libel” that could result in “substantial monetary damages and punitive damages.”

“Mr. Trump hereby demands that you immediately cease and desist from any further publication, release or dissemination of the book, the article, or any excerpts or summaries of either of them, to any person or entity, and that you issue a full and complete retraction and apology to my client as to all statements made about him in the book and article that lack competent evidentiary support,” the letter said.

Undeterred, Henry Holt and Co., the publisher, announced that rather than desist, it would make the book available for sale starting at 9 a.m. Friday rather than wait for its original release date on Tuesday.

“We see ‘Fire and Fury’ as an extraordinary contribution to our national discourse, and are proceeding with the publication of the book,” the company said in a statement.

The types of letters are legal saber rattling that Trump is famous for and, frankly, I don’t think bear fruit. A publisher will not cease publication of a book they’ve invested in.

What concerns me is that Trump is not just a private citizen, he’s President of the United States. There were plenty of books published by conservatives about former President Barack Obama that certainly did not paint him in a positive light. I certainly didn’t support President Obama’s agenda, but I don’t remember any instance of him threatening legal action against authors and publishers of those books.

It is challenging for people like Trump see success in a libel case because the plaintiff must prove malicious intent. Also of concern is that this book deals with Trump not as a private citizen, but it is a story of him as a presidential candidate and then president. We as voters have a compelling interest in this book’s release because we do have a right to know and make up our minds.

Even more troubling is the cease-and-desist letter that Trump’s attorney sent to Steve Bannon whose quotes elicited a rather harsh rebuke from Trump. ABC News reports:

Lawyers on behalf of President Donald Trump sent a letter Wednesday night to former White House Chief Strategist Stephen Bannon demanding he refrain from making disparaging comments against the president and his family…

…Trump attorney Charles J. Harder of the firm Harder Mirell & Abrams LLP, said in a statement, “This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent.”

As a former White House staffer Bannon is bound to not disclose any classified information he was privy to in his role. I don’t see how a non-disparagement and confidentiality agreement can be enforced in the public sector. If Bannon is called to testify before Congress it is not worth the paper it’s published on. I also doubt it would be upheld in court either.

Update: I want to be clear I’m not commenting on the veracity of Wolff’s book. Having read Wolff’s piece in The Hollywood Reporter to say this guy is a “creative storyteller” would be an understatement. I’m sure there are a lot of accurate quotes in his book, but parsing fact from fiction will probably be next to impossible and it’s abundantly clear the guy has an agenda.

How many of the people he quotes were taken out of context? How much of what he reports was heard first hand? I don’t doubt the Trump White House has been chaotic, but Wolff’s storytelling and narrative seem unbelievable. So, I think it’s a mistake to treat his book as gospel truth.

That said, President Trump’s attempt to shut down a book about his first year in the White House is troubling, and I also seriously doubt NDAs can be enforced with former public employees discussing an elected official. Good luck with that.