By Wilson R. Huhn,* Professor of Law
Introduction
On Oct. 28, 2016, 11 days before the 2016 presidential election, Stephanie Clifford signed a non-disclosure agreement pursuant to which Ms. Clifford was paid $130,000 in exchange for her promise not to disclose any information about her alleged affair with Donald Trump.[1] Ms. Clifford now wishes to be released from this agreement so that she can publicly discuss this matter,[2] and she has filed an action for a declaratory judgment to invalidate the agreement.[3] Mr. Michael Cohen, who formerly served as President Trump’s personal attorney, threatened to sue Ms. Clifford for $20 million for breaching the non-disclosure agreement.[4] Ms. Clifford has challenged the validity of the non-disclosure agreement on several grounds.[5] This essay discusses just one possible defense to the enforcement of this contract: Does the public’s First Amendment “right to know” about this matter outweigh the interest of Mr. Trump in enforcing this contract and keeping this information secret?
There are two ways in which the First Amendment might be invoked to make this agreement unenforceable: either directly as a matter of constitutional law or indirectly through the law of contracts.
Constitutional law is the law that governs the government. Because the actions of courts constitute “state action,” the courts may not enforce contracts that violate the Constitution. For example, although the Constitution does not forbid private parties from executing restrictive covenants that bar the sale of residences to members of racial or religious minorities, the Constitution does prohibit the courts from enforcing those covenants.[6] Under this approach, Ms. Clifford might contend that under the First Amendment it would be unconstitutional for a court to enforce the non-disclosure agreement she signed.[7] The disadvantage of this line of argument is that it would call into question the constitutionality of judicial enforcement of all non-disclosure agreements. The constitutional law approach would be a blunt tool for a nuanced problem.
The law of contracts has a much narrower focus than constitutional law. The law of contracts distinguishes promises that ought to be enforced from promises that ought not to be enforced. At the highest level of generality, the animating principle of the law of contracts is that the courts will only enforce promises that create value.[8] In this case, the law of contracts provides a targeted line of inquiry to determine whether the Trump/Clifford non-disclosure agreement ought to be enforced; the courts should determine whether or not enforcement of the agreement would violate public policy.[9]
Under the doctrine of “violation of public policy,” a court must refuse to enforce an agreement where the interest of the party in enforcing the contract is “clearly outweighed” by a countervailing interest of the public.[10] This essay examines whether in this particular circumstance the interest of the American people in having access to information relating to the honesty and candor of the President of the United States clearly outweighs the interest of the President in keeping that information secret.
Violation of Public Policy Doctrine
The doctrine of “violation of public policy” is set forth in Section 178 of the Restatement (Second) of the Law of Contracts. Section 178 provides that a “promise or other term of an agreement is unenforceable” if “the interest in its enforcement is clearly outweighed in the circumstances by a public policy.”[11] The public policy must be one that is “manifested by legislation or judicial decisions.”[12] In making this decision, the courts must take into account not only the strength of the competing interests but also the likelihood that a refusal to enforce the agreement will advance the public policy, the seriousness of any misconduct and the extent that it was deliberate, and the directness of the relation between that misconduct and term in question.[13]
In this case, Donald Trump has an interest in preventing or discouraging Stephanie Clifford from making certain disclosures. Before evaluating the strength of that interest in comparison to any public policy favoring disclosure, let us briefly consider the enforceability of non-disclosure agreements in other contexts.
Enforcement of Non-Disclosure Agreements
In some settings, non-disclosure agreements are not only consistent with public policy but are necessary to advance important public interests. For example, when two businesses negotiate a merger or acquisition, each entity must have an effective mechanism to protect its own proprietary information.[14] A mutual non-disclosure agreement is an efficient and proper way to safeguard each party’s commercial secrets.[15] As a practical matter, mergers and acquisitions would be impossible to arrange if the associated non-disclosure agreements were not enforceable.[16] For the same reason, a business must have the right to protect itself by binding its employees to non-disclosure agreements regarding trade secrets. In both of these situations, the law would enforce confidentiality even in the absence of a non-disclosure agreement. For example, under the Uniform Trade Secrets Act,[17] a former employee or a competing business is subject to injunction and is liable in damages for any loss resulting from misappropriation of trade secrets or other confidential information, such as customer lists.[18] Similarly, the federal Freedom of Information Act affords protection for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”[19] Regulations adopted pursuant to this law prohibit the disclosure of “confidential business information.”[20] Under these laws, even without a non-disclosure agreement, it is against the law and against public policy to reveal trade secrets. In most cases, a non-disclosure agreement prohibiting the disclosure or conversion of trade secrets serves public policy.
Similarly, the government must be able to preserve the confidentiality of classified information. Federal law makes it a crime to “knowingly and willfully communicate … any classified information” to persons who are not authorized to receive such information.[21] When the C.I.A. requires researchers and employees to sign non-disclosure agreements agreeing not to reveal sensitive or confidential information, the courts presumptively ought to enforce such contracts.[22] As with non-disclosure agreements protecting trade secrets, non-disclosure agreements governing classified information reflect and reinforce the public policy of preserving the nation’s secrets.
However, in recent years, our society has begun to recognize that non-disclosure agreements should not be used to suppress reports involving violation of the law or other dangers to public health and safety, even though the information being disclosed constitutes trade secrets or classified information.[23] Employees who have witnessed wrongdoing by the businesses or government agencies they work for are no longer as bound to silence as they previously were.[24] The law now requires that non-disclosure agreements applicable to many private and public employees must expressly provide that whistleblowers are exempt from the scope of those non-disclosure agreements.[25] As a result, in many cases, employees now have the right to report incidents of law violation and other matters to the proper authorities even if the disclosures involve trade secrets or classified information.
In Perricone v. Perricone[26] the Connecticut Supreme Court upheld a confidentiality agreement between divorced spouses that prohibited them from speaking publicly about each other and their division of property. The Perricone court specifically ruled that enforcement of that agreement did not violate public policy.[27] However, the court distinguished its case from cases where the non-disclosure agreement prohibited revelation of matters of “great public importance.”[28]
The public policy that is at stake in this case — the right of the people to receive information regarding matters of public importance — is the subject of the next portion of this essay.
The People’s First Amendment Right to Information Regarding Matters of Public Importance
Under the Restatement, the first and primary factor in determining whether a contract is against public policy is “[t]he strength of that policy as manifested by legislation or judicial decisions.”[29]
The policy at stake in this case — freedom of expression — is of the highest order. It is mandated not by mere legislation but is guaranteed by the first provision of the Bill of Rights: “Congress shall make no law … abridging the freedom of speech, or of the press;[.]”[30]
Freedom of Speech has not simply been upheld in judicial decisions. It has been enshrined as a fundamental right — both as an individual right and as a political right — by the greatest judges in American history. Dissenting in Abrams v. United States,[31] Justice Oliver Wendell Holmes described how freedom of speech is critical to the discovery of truth, and that this is “the theory of our Constitution.”[32] Holmes stated that our country was founded upon the idea that:
the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.[33]
Six years later in Whitney v. California,[34] Justice Louis Brandeis declared that the freedom to “think as you will and to speak as you think” is “indispensable to the discovery and spread of political truth.”[35] Brandeis noted that the remedy for falsehood and fallacies is not suppression but rather “more speech, not enforced silence.”[36] Like Holmes, Brandeis considered this principle to be the “command of the Constitution.”[37]
Donald Trump and his surrogates have asserted that Ms. Clifford is lying about their relationship.[38] However, it has been the law for nearly a century that the Constitution prohibits the courts from issuing injunctions to prevent the publication of defamatory remarks about public officials. In 1931 in Near v. Minnesota,[39] the Supreme Court refused to allow the courts to issue an injunction against a publication that was making defamatory comments about public officials.[40] The Supreme Court embraced James Madison’s view that the government may not limit our “freedom in canvassing the merits and measures of public men.”[41]
A closely analogous case to the one under consideration is Marsh v. Alabama,[42] the first “state action” case. In that case, the Court ruled that a privately-owned “company town” could not, consistent with the Constitution, bar a Jehovah’s Witness from proselytizing on the company’s property within the borders of the town. In an opinion by Justice Hugo Black, the Court rested its decision firmly on the right of the people to be informed:
Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.[43]
The Supreme Court has ruled that the right of the people to access to information regarding their public officials is the determining factor not only in cases such as Marsh where the Court struck down a prior restraint, but also in cases involving civil suits seeking an award of money damages. In 1964, in New York Times v. Sullivan,[44] the Supreme Court ruled that the courts may not award damages for defamatory comments regarding public officials in the absence of proof of “actual malice.”[45] The Court declared that the First Amendment stands for the proposition in this county there is a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,”[46] and “that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[47]
The issuance of an injunction against Ms. Clifford would be a prior restraint. In New York Times v. United States[48] (the Pentagon Papers case), the Supreme Court ruled that prior restraints are not only presumptively unconstitutional, but that the proponent of the restraint bears a “heavy burden” in justifying its constitutionality.[49] In his concurring opinion refusing to issue an injunction against publication of the Pentagon Papers, Justice Hugo Black stated: “In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”[50]
The strength of the public’s interest in access to information of public importance is highlighted by the Court’s decision in the case of Bartnicki v. Vopper.[51] In that case, the leaders of a teachers union sued a radio show host for playing a recording of a private cellphone conversation between the two discussing violent measures they might take against members of the school board.[52] The host’s disclosure of these recordings was a clear violation of federal and state privacy statutes.[53] In his defense to this civil suit for invasion of privacy, the host cited the First Amendment.[54] Despite the obvious interest of the two union leaders in the privacy of their conversation; despite the strength of the government’s interest in protecting their privacy;[55] despite the illegality of the wiretap that intercepted their confidential communication; despite the fact that the privacy statutes are content-neutral laws,[56] which are almost always upheld against government attack; despite all these factors militating in favor of the constitutionality of the privacy laws — the Supreme Court upheld the radio show host’s First Amendment defense and ruled that the union leaders could not, consistent with the First Amendment, bring suit against the host.
In so ruling, the Court did not rely primarily upon the expressive rights of the host, but, rather, the interest of the public in receiving the information in question. Because of the gravity of the right of the people to receive information regarding matters of public concern, it would be unconstitutional to apply the privacy laws to the facts of this case. The Court in Bartnicki explained:
The enforcement of [the privacy law] in these cases, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.
In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance.[57]
The right of the American people to receive information regarding matters of public importance is a compelling First Amendment policy. In Bartnicki v. Vopper, the public’s right to know subordinated the statutory right of the plaintiffs to keep their conversation with each other confidential.
The same values that were balanced against each other in Bartnicki — personal privacy versus the right of the public to know about matters of public importance — are at stake in Trump/Clifford case as well.
Balancing President Trump’s Interest in Non-Disclosure Versus the Public’s Right to Know
In applying the doctrine of “violation of public policy,” a court would have to balance the President’s interest in confidentiality against the fundamental right of the public to receive information regarding a matter of public concern. President Trump’s interest in enforcing the non-disclosure agreement is self-evidently strong. Ms. Clifford was paid $130,000 to keep silent regarding their alleged relationship.[58] Disclosure would likely result in personal embarrassment, public humiliation, and would be destructive of marital and family relations for Mr. Trump.
If Mr. Trump were a private citizen — even a prominent private citizen — his interest in maintaining confidentiality regarding these matters would unquestionably outweigh any interest of the public in knowing the details of his private life. Even as President, it could be argued that such intimate details ought to remain secret, so long as those who are aware of those details have agreed to keep that information confidential. As the Supreme Court explained in Bartnicki, the “constitutional calculus”[59] might be different if the conversations that were intercepted had involved “trade secrets or domestic gossip or other information of purely private concern.”[60]
However, this case is not simply about disclosure of the allegedly intimate relationship between Mr. Trump and Ms. Clifford. Of far more importance is whether or not the President has been truthful and forthcoming about that relationship to the American people. It is that consideration that must be balanced against the President’s right to privacy.
Conclusion
The First Amendment is not limited to the right of the individual to speak or write. That is only one aspect of the public policy supporting the First Amendment. Equally important – and just as critical to our democracy – is the public’s right of access to information regarding matters of public importance.
Under the doctrine of “violation of public policy,” the question is whether President Trump’s interest in enforcing the non-disclosure agreement is “clearly outweighed” by First Amendment concerns. If Mr. Trump were a private citizen, the details of his private life would belong to him. To the extent that he entered into contracts for the purpose of keeping his private life secret, it would implicate no competing public policy. But when he ran for President — certainly by the time he became the Republican nominee for President — the American people acquired a vital interest in knowing about his character. Is he honest or dishonest? Is he candid or secretive? Is he trustworthy or untrustworthy? It is at least debatable that Mr. Trump’s interest in enforcing the non-disclosure agreement against Ms. Clifford is clearly outweighed by the interest of the public in not enforcing that agreement — and that as President, Mr. Trump is no longer entitled to enlist the aid of the courts to suppress public access to information about his honesty, candor, and trustworthiness.
Sources
* B.A. Yale University, 1972; J.D. Cornell Law School, 1977; Visiting Professor, Duquesne University School of Law; Distinguished Professor Emeritus, University of Akron School of Law.
[1] The non-disclosure agreement is available as an attachment to Ms. Clifford’s original complaint that was filed in state court and may be accessed at http://lawprofessors.typepad.com/files/state-court-complaint-1.pdf. I have used the passive voice in describing the payment under this agreement because at this time, it is not clear whether Donald Trump is a party to the contract.
[2] See, e.g., Dan Mangan & Kevin Breuninger, Stormy Daniels rips Trump’s lawyer Michael Cohen after court hearing deals blow to president and his fixer, CNBC (Apr. 16, 2018, 5:48 PM ET), https://www.cnbc.com/2018/04/16/stormy-daniels-rips-trumps-lawyer-michael-cohen-after-court-hearing-deals-blow-to-president-and-his-fixer.html (containing a link to the video of Ms. Clifford’s remarks to the press on April 16, 2018, following the court hearing at which Michael Cohen, Mr. Trump’s former attorney, sought to suppress information seized from his home and office). Ms. Clifford stated: “My attorney and I are committed to making sure that everyone finds out the truth and the facts of what happened, and I give my word that we will not rest until that happens.”
[3] See Adam Steinman, Procedural Moves in Stormy Daniels’ Lawsuit Against Donald Trump, Civil Procedure & Federal Courts Blog (Mar. 17 2018), http://lawprofessors.typepad.com/civpro/2018/03/procedural-moves-in-stormy-daniels-lawsuit-against-donald-trump.html.
[4] See Ashley Cullins, Trump Lawyer Seeking $20M From Stormy Daniels for Violating “Hush Agreement”, The Hollywood Reporter (Mar. 16, 2018, 5:43 PM PT), https://www.hollywoodreporter.com/thr-esq/donald-trumps-lawyer-seeking-20m-damages-stormy-daniels-violating-hush-agreement-1095257.
[5] In paragraphs 38, 39, and 40 of her original complaint filed in state court, Ms. Clifford asserted that the non-disclosure agreement was never formed because it was never signed by Mr. Trump and because: Mr. Trump failed to provide any consideration; the agreement is unenforceable under the doctrine of unconscionability; and it is unenforceable because it has an illegal purpose or is in violation of public policy. See supra note 1.
[6] Shelley v. Kraemer, 334 U.S. 1 (1948) (refusing to enforce restrictive covenant barring an African-American family from occupying the house that they had purchased in a white neighborhood).
[7] If the court were to issue an injunction against Ms. Clifford under the contract, it would constitute a prior restraint; if money damages were awarded under the contract, it would constitute a subsequent punishment. In either case, Ms. Clifford might contend that enforcement of the agreement violates the First Amendment.
[8] Enforceable contracts consist of voluntary promises induced by mutual, bargained-for consideration. When a person sells goods or provides services for a price both parties benefit, the seller or service provider and the buyer both have more than they had before: They have created value. In contrast, a promise made without consideration is not enforceable because it does not increase value but merely transfers value from one person to another. Promises that are based on incomplete or inaccurate information due to mistake or misrepresentation are not enforced because they are unlikely to create value. Promises that are not voluntary because of duress, undue influence, or lack of capacity are unenforceable because enforcing a promise where one party is taking advantage of the other would likely diminish the amount of value in society. For the same reason, the law does not enforce promises or grant remedies that would result in economic waste. The “substantial performance” doctrine of Jacob & Youngs v. Kent prohibits the enforcement of promises that amount to a forfeiture. The doctrine of excuse does not permit the enforcement of promises that have become commercially impracticable. The courts recognize the doctrine of “efficient breach” so that a party may breach one promise in order to perform another that is more profitable, thereby increasing the amount of value in society. And promises made for an illegal purpose or that would violate public policy are unenforceable because the harm to society, if the promises were performed, outweighs the value that would result from enforcing the promise.
[9] The defense of violation of public policy is raised in paragraph 40 of Ms. Clifford’s original complaint. See supra notes 1, 5.
[10] Section 178 of the Restatement (Second) of Contracts provides:
(1) A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.
(2) In weighing the interest in the enforcement of a term, account is taken of
(a) the parties’ justified expectations,
(b) any forfeiture that would result if enforcement were denied, and
(c) any special public interest in the enforcement of the particular term.(3) In weighing a public policy against enforcement of a term, account is taken of
(a) the strength of that policy as manifested by legislation or judicial decisions,
(b) the likelihood that a refusal to enforce the term will further that policy,
(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and
(d) the directness of the connection between that misconduct and the term.
[11] Id.
[12] Id.
[13] Id.
[14] See Mergers and acquisitions – Letter of intent and confidentiality agreement, Intell. Prop. L. Bus. Law. § 14:34 (Nov. 2017 Update).
[15] See id. (describing the non-disclosure agreement as an “important tool to protect the confidentiality of sensitive and confidential information exchanged during the ‘due diligence’ phase of the transaction”).
[16] See id. For an example of a mutual non-disclosure agreement, see Mutual nondisclosure agreement in consideration of merger, 7 Florida Jur. Forms Legal & Bus. § 28:473.
[17] 12 Pa. C.S. Ch. 53 (PUTSA, Pennsylvania’s enactment of the Uniform Trade Secrets Act).
[18] See, e.g., Kenset Corp. v. Ilanjian, 600 Fed.Appx. 827 (2015) (granting an injunction against consultant’s disclosure of confidential information pursuant to PUTSA).
[19] 5 U.S.C. § 552(b)(4).
[20] 19 C.F.R. 201.6.
[21] 18 U.S.C. § 798.
[22] See Sensitive Compartmented Information Nondisclosure Agreement, CIA.gov, https://www.cia.gov/library/readingroom/docs/CIA-RDP85T00788R000100100003-0.pdf (last visited May 10, 2018).
[23] See, e.g., Terry Morehead Dworkin & Elletta Sangrey Callahan, Buying Silence, 36 Am. Bus. L.J. 151 (1998) (opposing the enforcement of non-disclosure agreements against employees disclosing their employer’s acts of fraud or law violation); Jodi L. Short, Killing the Messenger: The Use of Nondisclosure Agreements to Silence Whistleblowers, 60 U.Pitt. L. Rev. 1207 (1999) (same).
[24] See, e.g., 18 U.S.C. § 1833(b)(1) (protecting whistleblowers from civil and criminal liability). The statute states:
(b) Immunity From Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing.
(1) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that
(A) is made
(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and
(ii) solely for the purpose of reporting or investigating a suspected violation of law; or(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
See also Richard Moberly, Whistleblowers and the Obama Presidency: The National Security Dilemma, 16 Employee Rts. Pol.J. 51 (2012) (describing the Obama administration’s enhanced protection for government whistleblowers generally and his nuanced approach to whistleblowers in the intelligence community).
[25] See, e.g., Whistleblower Protection and Non-Disclosure Policies, Forms, or Agreements, U.S. Dept. of Justice (updated Sept. 18, 2014), https://www.justice.gov/employees/whistleblower-protection-and-non-disclosure-policies-forms-or-agreements. See also 17 C.F.R. § 240.21F-17(a) (prohibiting the use of confidentiality agreements to impede whistleblowers). This S.E.C. regulation provides:
(a) No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement (other than agreements dealing with information covered by § 240.21F-4(b)((4)(i) and § 240.21F-4(b)(4)(ii) of this chapter related to the legal representation of a client) with respect to such communications.
[26] 292 Conn. 187 (2009) (upholding confidentiality agreement between a divorced couple).
[27] Id. at 686-689 (discussing whether enforcement of the confidentiality agreement would violate public policy and concluding that it would not).
[28] Id. at 688-689 (stating “[t]he agreement does not prohibit the disclosure of information concerning … matters of great public importance.”
[29] See supra note 9.
[30] U.S. Const. amend. 1.
[31] 250 U.S. 616 (1919) (upholding defendants’ convictions under the Espionage Act).
[32] Id. at 630 (Holmes, J., dissenting).
[33] Id.
[34] 274 U.S. 357 (1927) (affirming defendant’s conviction under the California Criminal Syndicalism Act).
[35] Id. at 375 (Brandeis, J., concurring).
[36] Id. at 377 (Brandeis, J., concurring).
[37] Id. Brandeis stated:
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
Id.
[38] See Michael Finnegan, Trump team and Stormy Daniels each accuse the other of lying as clash over alleged affair escalates, LA Times (Mar. 26, 2018, 8:55 PM), http://www.latimes.com/politics/la-na-pol-stormy-trump-cohen-20180326-story.html (quoting White House Deputy Press Secretary Raj Shah: “The President doesn’t believe that any of the claims that Ms. Daniels made last night in the interview are accurate.”); Michael Rothfeld & Rebecca Ballhaus, Stormy Daniels suing Trump lawyer Michael Cohen for defamation, Wall Street Journal (Mar. 27 2018, 3:42 AM ET), https://www.marketwatch.com/story/stormy-daniels-suing-trump-lawyer-michael-cohen-for-defamation-2018-03-26 (quoting Trump’s former attorney Michael Cohen: “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage.”).
[39] 283 U.S. 697 (1931) (striking down state law authorizing injunctions against the operation of “malicious, scandalous and defamatory” publications).
[40] See id. at 723 (finding that the state law authorizing the injunction “imposes an unconstitutional restraint upon publication”).
[41] Id. at 718 (quoting Madison’s Report on the Virginia Resolutions).
[42] 326 U.S. 501 (1946) (reversing trespass conviction of Jehovah’s Witness who gave out religious literature in a company-owned town).
[43] Id. at 508-09.
[44] 376 U.S. 254 (1964) (overturning defamation judgment against The New York Times).
[45] See id. at 279-280. The Court ruled:
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
[46] Id. at 270.
[47] Id.
[48] 403 U.S. 713 (1971) (refusing to enjoin the publication of the Pentagon Papers).
[49] Id. at 714 (per curiam). The Court also stated: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Id.
[50] Id. at 717 (Black, J., concurring).
[51] 532 U.S. 514 (2001) (holding that state and federal laws that prohibited disclosure of information obtained through illegal wiretaps could not be enforced against media outlet that obtained the recordings lawfully).
[52] See id. at 518 (describing the facts of the case).
[53] See id. at 521 (stating that the District Court had rejected the defendants’ statutory argument on the ground that “under the plain statutory language, an individual violates the federal Act by intentionally disclosing the contents of an electronic communication when he or she ‘know[s] or ha[s] reason to know that the information was obtained’ through an illegal interception.”).
[54] See id. at 520 (setting forth the defenses raised by the defendants).
[55] See id. at 523 (stating that “[o]ne of the stated purposes of that title was ‘to protect effectively the privacy of wire and oral communications’”).
[56] See id. at 526 (stating that “[t]he statute does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations”).
[57] Id. at 533-34.
[58] See supra note 1.
[59] Id. at 533 (stating that “it seems to us that there are important interests to be considered on both sides of the constitutional calculus”).
[60] Id. (stating “[w]e need not decide whether that interest is strong enough to justify the application of [the Wiretap Act] to disclosures of trade secrets or domestic gossip or other information of purely private concern”).
