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The President and Chilling Free Speech
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While the public discourse has been consumed over the realization that abortion physicians actually let viable babies who survive late-term abortions die — as well as whether President Donald Trump or House Speaker Nancy Pelosi will blink first over the issue of congressional authorization for building a wall at the country’s southern border, to say nothing of the race- and sex-infused mess at the top of the government in Virginia — a profound free speech issue has been bubbling below the radar.

A former White House communications aide and former Trump campaign adviser who has written a blistering tell-all book about the Trump White House now finds himself in litigation about whether he can freely publish his book — which he has already done — and freely profit from it.

The former Trump friend and colleague is Cliff Sims, and his book is called “Team of Vipers.” It makes Chris Christie’s book about his bitter experiences with those around the president look as if it were written by Mother Teresa by comparison. The president and his folks, who knew of the book before it was published, apparently bristled at the stories related and allegations contained and opinions expressed in it.

This is an unhappy tale, not with regard to accuracy or fairness in reporting but with regard to the doctrine of fair comment and the natural and constitutional right to the freedom of speech. Here is the back story.

When Sims began his time as an official of the Trump campaign, he signed a nondisclosure agreement, or NDA. NDAs typically bar the revelation of information gathered during one’s employment. They were nearly universal in the Trump campaign.

Sims’ NDA also provided that if there was any dispute between him and the campaign over the meaning of the NDA or whether he or the campaign violated it, that dispute would be resolved in secret arbitration, not in a public courtroom in front of a judge and jury. The NDA further provided for liquidated damages — a pre-agreed-upon amount of money that Sims would owe to the campaign if arbitrators found that he violated the NDA.

What about the freedom of speech and the right to a fair trial? The theory of an NDA is that the signer has knowingly waived those rights in return for the employment contemplated by the NDA. This is a quid pro quo. You get hired at a job you want; you get the pay and perks you sought; you agree to keep silent the secrets you learn. And if there is a dispute about what you can say and to whom you can say it, the dispute itself will be resolved in secret because you agreed to that in the NDA. If the arbitrators find that you violated the NDA, you owe a certain amount of money to the other party — in this case, $10 million to the Trump campaign — whether you caused damages in that amount or not.

ORDER IT NOW

That is at least the theory of how these NDAs are supposed to work. The courts do not favor these agreements, because they often stifle free speech — and often it is speech in which there is a material and serious public interest. Yet as they are between private parties, NDAs are enforceable.

In this case, the speech is about Trump — not as a candidate but as the president. So after Sims’ book was published and after the folks in the West Wing, where he worked for a year, read what he wrote, the Trump campaign — it still has a skeleton staff and lawyers on the payroll — filed a complaint with the designated arbitration entity, demanding the liquidated damages of $10 million.

Then Sims’ lawyers filed a complaint in federal district court, asking a judge to enjoin the arbitration proceeding because what Sims’ wrote he learned about while working for the government, not on the campaign. The campaign will no doubt point to an NDA it claims Sims signed when he began his tenure in the West Wing and argue that it applies as effectively as the NDA he signed for the campaign. Sims recalls no NDA at the White House.

Here is the problem for Trump. The campaign is not subject to the First Amendment, but the White House clearly is. Even if Sims did sign an NDA at the White House, the First Amendment bars the government from enforcing it, and several federal statutes protect whistleblowers, no matter what they agreed not to say at the outset of their work, unless it is classified material being protected. In the West Wing, Sims worked for the federal government, not Donald Trump personally and not the campaign.

Can the government punish speech of someone who agreed to remain silent? In a word: No. It cannot deter speech, and it cannot chill speech. Chilling takes place when government behavior is so oppressive that the potential speaker is afraid to speak about what he knows.

And if the speech is comment about public people or public policy, it is protected by the doctrine of fair comment. That is a Supreme Court rubric underscoring the truism that the whole purpose of the First Amendment is to protect and encourage open, wide, robust speech about the government — speech that sheds light on dark government corners, speech that is unafraid of and immune from the slightest whiff of government redress, speech that can be harsh in tone and discomfiting in delivery.

It is that brand of public free speech that the Framers intended to protect by the First Amendment. As one of President Trump’s no-holds-barred predecessors famously said, “if you can’t stand the heat, get out of the kitchen.”

If presidents can use legal artifices to punish the speech they hate and fear, they are no longer presidents in a free society. They are princes in an empire.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Freedom of Speech 
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  1. Rational says:

    SO WHY DO UNIVERSITIES HAVE SPEECH CODES?

    Sir, you really are a good example of a broken and fraudulent legal system. The Judiciary is doing a good job, conning the public. They support the first amendment for liberals, who threaten to kill Trump, and then say he (a conservative website owner) cannot hide under the first amendment, when a conservative is sued.

    If the Trump white house cannot control what its employees write about the President, then how come universities (funded by the govt, i.e. they are govt.) have speech codes and kick students out for singing songs with n-word, etc?

    What a Judicial scam!

  2. anonymous[340] • Disclaimer says:

    I no longer trust Mr. Napolitano. But I naively assumed from the headline that this column would concern the lockstep condemnation throughout official Washington, including from President Trump, of Congresswoman Ilhan “Baby Benjamins” Omar.

    I no longer trust Mr. Napolitano. So I fact-checked this “back story” about a former flakker for the White House. As reported in the WarPo, “Sims was caught near the end of his tenure surreptitiously recording the president, [current and former administration] officials said.”

    I no longer trust Mr. Napolitano. His gig as “Freedom Watcher” includes periodically professing natural and Constitutional rights. But he does so in the abstract or carefully selected contexts. After all, as a famous “Judge” once said: “You get hired at a job you want; you get the pay and perks you sought; you agree to keep silent the secrets you learn.”

    • Replies: @Bubba
  3. lavoisier says: • Website

    That is a Supreme Court rubric underscoring the truism that the whole purpose of the First Amendment is to protect and encourage open, wide, robust speech about the government — speech that sheds light on dark government corners, speech that is unafraid of and immune from the slightest whiff of government redress, speech that can be harsh in tone and discomfiting in delivery.

    Are you serious? Free speech in America is protected?

    If I am not mistaken there is a bill brewing in Congress that would make illegal supporting the BDS movement?

    And within our free and open society you can be sure that you will keep your job if you dare to question the holocaust narrative or suggest that perhaps there may be racial differences in intelligence.

    We are an intolerant nation, and our constitutional protections are becoming nothing more than symbol that lack substance.

    Ask Justice Ginsburg or the wise Latina what she really thinks about the constitution.

    Or for that matter any of the Senators who recently voted to criminalize the BDS movement.

    • Replies: @KenH
  4. KenH says:
    @lavoisier

    If I am not mistaken there is a bill brewing in Congress that would make illegal supporting the BDS movement?

    The intrepid, freedom watching Judge Nappy ain’t gonna touch THAT subject with a 50ft pole.

    • Agree: lavoisier
  5. KenH says:

    The judge is wrong to consider Cliff Sims some type of brave whistleblower. A whistleblower blows the whistle in criminal activity by those in power. It’s my understanding that the book is just salacious gossip and rumors in book form about some figures in the Trump White House, but not necessarily Trump himself. Soccer moms and Trump haters like judge Nappy might find it titillating.

    Strange how there were never any “tell all” books by Obama White House insiders casting aspersions on the magic negro and rainbow coalition personalities within his administration.

  6. Bubba says:
    @anonymous

    This Sims nonsense pales in comparison to Obama going after James Rosen and Sharyl Attkisson. The “Judge” commits malpractice with his weekly columns.

    • Replies: @anonymous
  7. Anon[210] • Disclaimer says:

    Who cares what this shill, Napolitano, with an Anti-Trump agenda says. He’s no better than CNN, given his long time clear agenda of anti-Trump agitation in line with all of the others. His attempt to gains some ‘street cred’ by posting an article here is lame. Your voice belong solely with your employer.

  8. anonymous[340] • Disclaimer says:
    @Bubba

    Ah, yes, one of the most hypocritical aspects of President ConLawProf.

    Using the great search tool at the upper right, I just saw that Mr. Napolitano has mentioned Mr. Rosen once (back in 2014), Ms. Attkisson never. That’s anecdotal, of course, but thinking about what a pundit doesn’t address is another good brainwashing antidote. (For another example, how can anyone professing a desire for peace have skirted how President Trump was made to walk back Helsinki last July?)

    Tyrants used to burn books. Now, they try to erase and obscure the digital record. The older I get, the more I appreciate why Orwell emphasized the importance of history and the evil of its alteration.

    And this seems a good time to renew my prediction that Mr. Napolitano will eventually pull up stakes here, perhaps citing some crimethink that he can no longer be associated with. In the meantime, let’s keep reading him closely.

    • Replies: @anarchyst
    , @Bubba
  9. anarchyst says:
    @anonymous

    “The older I get, the more I appreciate why Orwell emphasized the importance of history and the evil of its alteration”.
    Your statement is questionable, especially the “alteration” part.
    History needs to be “altered” in order to remove the propaganda (the victors write the history) aspects. Unfortunately, it takes around 100 years for the historical record to be set straight, removing the biases of the “victors”.
    Eventually, Hitler will be seen as a great leader, whose attempts to defend his country from jewish (moneyed) interests were unsuccessful. The firebombing of Dresden and other “war crimes” committed by the Allies are finally being exposed.
    As far as I am concerned, the USA and Great Britain were “on the wrong side” in WW2. We should have assisted Germany in rolling over the Soviets. We would have not had a “cold war” and would have permanently destroyed jewish Bolshevism–something the jewish (moneyed) interests could not allow.
    It is no secret that jewish (moneyed) interests were instrumental in getting the USA into the fight. As a matter of fact, neutral Switzerland was used as a conduit for war materiels. If Germany needed something that was produced in the USA, it went through Swiss channels–the same thing if the USA needed something that Germany produced.
    FDR had forewarning of the Japanese attack on Pearl Harbor and allowed the attack to take place, putting the blame on military officers (who have since been vindicated).
    The so-called jewish “holocaust” is a prime example of propaganda, not only being used as a “cash cow”, but used on a geopolitical basis to justify the “land theft” from the Palestinians. It is, by far, the most successful use of propaganda in modern history. Fortunately, serious cracks (lies and fabrications) are appearing in the “holocaust” story, hence, the need for jewish interests to criminalize “holocaust denial” in order to “keep the dream alive” (and the shekels flowing), the truth be damned.
    History has to be constantly revised, if we are to learn the truth…and learn from (real) history.

    • Replies: @anonymous
    , @KenH
    , @Hank
  10. anonymous[340] • Disclaimer says:
    @anarchyst

    Thanks. The word “obliteration” there would have better expressed my thought. And I share your skepticism of the official line, particularly here in Exceptionalia. Historians should question, not just recount.

  11. Bubba says:
    @anonymous

    “…perhaps citing some crimethink that he can no longer be associated with.”

    Ahhh! That was your question! Mea culpa, I was not diligent looking in to it. Totally slipped my mind.

    I wonder if the “Judge” was in blackface at a Halloween party years ago? Seriously though, perhaps he is hoping that one his rulings from the bench years ago is Stalinized to avoid an investigation.

    Or just maybe that Napolitano’s unwavering public support of Herr Mueller could be related to this:

    https://www.latimes.com/business/hollywood/la-fi-ct-napolitano-fox-news-20170320-story.html

    He doesn’t want to lose $ millions being dragged into the Russian investigation like Roger Stone or countless others. Granted, he did write an article defending Roger Stone, but maybe the good “Judge” reached a quid pro quo or “pay to play” scheme with Mueller and his band of Kapos.

    Thank you for your patience Anon340.

  12. KenH says:
    @anarchyst

    Very good points. As Harry Elmer Barnes said the purpose of revisionism is to bring history into accord with the facts and as we’ve seen sometimes the first drafts of historical events are sometimes wrong if not blatant propaganda. No more is that the case than in WWII in which only the Jewish point of view is taught in schools, Hollywood movies and television documentaries.

    Judeo-Soviet atrocities that far exceeded anything done by the Nazis were virtually whitewashed from the historical record up until about the last twenty five years.

  13. buckwheat says:

    Dear President Trump, will you blow this asshole a kiss? He’s lost without you, its obvious he is suffering from PTSD without being able to suck up to you. Please for the love of God and humanity just acknowledge him again and I guarantee he’ll be your biggest supporter ever. It’ll be our loss reading his humor columns on here but somehow we will manage……..

  14. Hank says:
    @anarchyst

    I have bad news for you. The official history (documents, tapes, etc..) is being locked away, altered, destroyed, or hidden in some manner. Since the late 90’s agencies have literally going back to the national archives and removing already released documents.

    • Replies: @anarchyst
  15. anarchyst says:
    @Hank

    I must respectfully disagree.
    Ever since the collapse of the Soviet Union, archives within the country have been searchable and prove that the number of camp deaths (for all camps) was approximately 731,000-NOT 6,000,000…other archived information is becoming available out of the former Soviet Union. Jews are doing their damndest to prevent the TRUTH from being revealed, but they will be unsuccessful in stifling the truth.
    As an aside, it has been proven that the “gas chambers” at Auschwitz were fabricated as propaganda pieces after the cessation of WW2 by the Soviets. They did such a poor job that there is NO WAY any competent engineer could get them to work.
    Regards,

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