MANHATTAN (CN) — President Donald Trump’s re-election campaign uses unconstitutionally broad nondisclosure clauses to chill hundreds of former staffers from publicly disparaging the president and his family, according to a class action filed in New York on Monday.
Two law firms, Bowles & Johnson PLLC and Ballard Spahr LLP, joined the nonprofit group Protect Democracy to bring a lawsuit in Manhattan Supreme Court challenging the enforceability of what they say are the “ill-defined and vastly overreaching provisions” of the Trump campaign’s nondisclosure provisions of the campaign’s uniform employment agreements.
In 2016, the Trump campaign required its staffers and freelancers to sign contracts prohibiting them from disparaging or demeaning Trump, any member of his family, or any of his and his family’s companies forever, according to the plaintiffs.
The Trump campaign uses the clauses “to threaten to impose and actually to impose significant retaliatory financial penalties on individuals for asserting their statutory rights and disclosing wrongdoing,” the plaintiffs say in the class action.
Those same contracts also prohibit staffers from ever disclosing any information that Trump unilaterally deems private, with no possible way to understand what that might mean.
The-29 page complaint claims the campaign’s NDAs are violations of state and federal constitutional protections of speech and the press.
To this day, lead plaintiff Jessica Denson says she and other former 2016 Trump campaign staffers, contractors, and volunteers remain bound by the 2016 campaign’s nondisclosure and nondisparagement clause, effectively barring them ever from criticizing the current president of the United States and from sharing their views and experiences as employees of the campaign.
According to the complaint, from December 2017 through February 2020, Denson avoided or moderated any public comments regarding the campaign and Trump during a sexual harassment litigation because of the threat caused by the campaign’s aggressive efforts to enforce arbitration claims against her.
The plaintiffs say the agreements are also unlawful and unenforceable under New York contract law because they are open-ended, unreasonable, and otherwise against public policy.
David Hoffman, a professor of law at University of Pennsylvania, said Monday that while most previous disputes over the Trump campaign’s nondisclosure agreements have gone into arbitration and never emerged, he believes this complaint has good chance in court.
“I think the complaint has a pretty strong basis to say that this particular clause is so widely and vaguely drafted that it can’t stand up in court,” Hoffman said in an interview Monday. “It just is too broad because it restrains freedom in a way that the signatories couldn’t possible know and so therefore it’s not a contract.
“A contract requires there to be definiteness,” he said. “This thing that looks a contract, and smells like a contract and acts like a contract, isn’t really a contract because it’s just too vague to figure out what’s prohibited and what’s not.”
John Langford, counsel for Protect Democracy, said in a statement when the lawsuit was filed that “campaigns cannot use NDAs to prevent Americans from ever criticizing public officials and candidates for office or from ever sharing with the public any information a candidate unilaterally deems private.”
Orly Lobel, a law professor at University of San Diego, said this suit is particularly important because it is a class action.
“It’s not just about this one campaign worker but about how there are hundreds and hundreds of people that worked, whether as freelancers or volunteers or employees, and have all signed the same uniform, unilateral, overly restrictive confidentiality agreement,” Lobel said in an interview Monday.
Lobel said the agreements are so overly broad that any employee or freelancer who signed the standard contract of the Trump campaign would barely have any way to know even if they’re in breach of this contract.
Anticipating the defense’s arguments, Lobel predicted that the Trump campaign will go with “a contract is a contract is contract” but she said there is a decade of case law that says “No, contract law has limits on these grounds, constitutional and common law statutory grounds. We have all these doctrines about these limits.”
Lobel acknowledged some legitimate reasons against disclosing the campaign’s business interests, which would justify that some information will be kept secret for some time, but that’s where it is the Trump campaign’s responsibility to fine-tune the otherwise-overreaching restrictions.
“Internally, you do want to allow a campaign to speak freely when there’s disagreements within without everything leaking out in real time,” she said. “It’s really the burden on the drafter, the employer — in this case the Trump campaign — to fine-tune it and to give something that’s workable to the employee that they can understand what it is that they can’t talk about and everything else is fair game and they have not done that.”
The Trump For President Campaign is incorporated in Virginia but operates its headquarters out of Trump’s eponymous Trump Tower on Fifth Avenue in Manhattan.
Representatives for the Trump campaign did not immediately respond to request for comment Monday afternoon.