We, you know, the citizens of the United States who have an unlimited capacity for the political shenanigans of the Republicans, yea, those of us who’ve had that cast-iron stomach installed –
Sorry.
Anyways, we’ve been hearing of late that Omarosa Manigault Newman was going to be sued by the Trump Campaign, which is a private entity distinct from the White House, for breaching her NDA (Non-Disclosure Agreement), and I figured, since we’re not talking the government, which is banned from interfering with free speech, she probably would lose, the NDA would be found to be binding, and she’d be ordered to shut up. That’s why I found this article in WaPo so fascinating, because it appears that my amateur interpretation may be false:
The NDA would constitute a restriction on matters of the utmost public importance, according to Kitrosser. “It would be a blanket prior restraint, one that goes well beyond a narrowly tailored way of keeping, say, sensitive national-security information out of the public eye. Such an agreement — if considered one between the government and a private person — would go well beyond anything that I could imagine any court approving.”
There is also an existing body of law on the state-action doctrine — when something normally done by a private actor is effectively the work of the state.
It would be an unusual, though not implausible, argument because, as Kitrosser said, “This is an unusual president.” He is trying to not only silence Manigault Newman but also prevent her from speaking about things he did as the president of the United States of America, she said.
If the Trump campaign was deemed a state actor, it would be viewed in the same light as the White House. “Absent some overriding government interest, the First Amendment would foreclose it from enforcing an NDA that barred a private citizen from addressing an issue of public concern,” said First Amendment Knight Institute Fellow Ramya Krishnan.
And then that might apply to all those NDAs that White House staff have been required to sign in order to work at the White House, and if they become invalid … it’ll be a bloody wave of inside information on Trump and his top aides. I suspect most of it would be unsurprising and not of real importance, but there’s always the chance that the wrong nugget of information might come popping out, that one bit that alienates half of his base.
And perhaps would embolden a cowed GOP to finally do something about a President who has been busy destroying the safety of this country. In fact, if they wish to preserve any semblance of respectability post-midterm elections, it might be their only opportunity.
But they continue to look like third-raters, so don’t bet on it.
