(CN) — Overturning a key aspect of an extraordinary restraining order blocking publication of a book by the president’s niece Mary Trump, a New York appeals court ruled on Wednesday night that Simon & Schuster is not bound by it.
“Unlike Ms. Trump, [Simon & Schuster] has not agreed to surrender or relinquish any of its First Amendment rights,” Justice Alan Scheinkman, the presiding judge of the state’s Appellate Division, Second Department, wrote in a 6-page ruling.
The effect of the ruling is not immediately clear because the revised order prevents “Mary L. Trump, together with any agent,” from publishing, printing or distributing the book. Whether or not Simon & Schuster qualifies as an “agent” is for the trial judge to decide.
Represented by Davis Wright Tremaine, Simon & Schuster celebrated the victory.
“We are gratified with the Appellate Court’s decision to overturn the temporary restraining order issued by the lower court against Simon & Schuster,” the publisher’s spokesman Adam Rothman said in a statement.
“We support Mary L. Trump’s right to tell her story in ‘Too Much and Never Enough,’ a work of great interest and importance to the national discourse that fully deserves to be published for the benefit of the American public. As all know, there are well-established precedents against prior restraint and pre-publication injunctions, and we remain confident that the preliminary injunction will be denied.”
Gabe Rottman, from the Reporters Committee for Freedom of the Press, also applauded the decision.
“The court’s ruling is heartening — if the First Amendment means anything, it’s that a court can’t ban a book,” Rottman, who heads the Reporters Committee’s Technology and Press Freedom Project, said in a statement. “Further, imbuing an almost two decade-old confidentiality agreement with the power to block or punish the authorship or publication of a book about the president of the United States would be an extreme affront to the public’s right to know.”
Ever since the Supreme Court allowed The New York Times to publish the Pentagon Papers, the U.S. judiciary set an extraordinarily high bar against prior restraint of the press. President Trump first tried to weaken that watershed precedent by trying to block publication of his former Secretary of State John Bolton’s book “The Room Where It Happened.”
His brother Robert Trump then went on the offensive against their niece Mary Trump, claiming her plans to publish a tell-all violated a nondisclosure agreement signed after the death of her grandfather, Fred Trump.
“While Ms. Trump unquestionably possesses the same First Amendment expressive rights belonging to all Americans, she also possesses the right to enter into contracts, including the right to contract away her First Amendment rights,” Justice Scheinkman wrote. “Parties are free to limit their First Amendment rights by contract.”
Subtitling her book “How My Family Created the World’s Most Dangerous Man,” Mary Trump hopes to break a silence that has been contractually enforced since 2001. Early previews of its contents reported that she steps forward as the source of The New York Times reporting that Trump inherited his fortune through tax fraud.
Today’s ruling indicates that the nondisclosure deal was particularly sweeping.
“The confidentiality agreement here does not have any temporal or geographic limitation,” the opinion states. “The passage of time and changes in circumstances may have rendered at least some of the restrained information less significant than it was at the time and, conversely, whatever legitimate public interest there may have been in the family disputes of a real estate developer and his relatives maybe considerably heightened by that real estate developer now being president of the United States and a current candidate for re-election.”
The ruling indicates that whether the book goes to print will be a judgment call for Justice Hal Greenwald, who is presiding over the case in a state court in Robert Trump’s home of Dutchess County.
“It bears noting that, while parties are free to enter into confidentiality agreements, courts are not necessarily obligated to specifically enforce them,” Justice Scheinkman wrote. “Whether to issue an injunction is a matter of equity.”
One of those factors is the public interest.
“Stated differently, the legitimate interest in preserving family secrets maybe one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the President of the United States,” the ruling states.
Mary Trump’s attorney Ted Boutrous, from the firm Gibson Dunn, said he will file a brief on Thursday urging to vacate the restraining order.
Robert Trump’s attorney Charles Harder did not immediately respond to an email requesting comment Wednesday evening.