(CN) — Hours after the refiling of a lawsuit to block the president’s niece Mary Trump from publishing her tell-all book, publisher Simon & Schuster fired back on Friday with a letter telling the new judge that such a ruling would be “plainly an unconstitutional prior restraint.”
“Such a restraint is the ‘most serious and the least tolerable infringement on First Amendment rights’ … in the American republic,” the publisher’s attorney Elizabeth McNamara wrote in a two-page letter.
Since the Supreme Court’s landmark ruling allowing the New York Times to publish the Pentagon Papers, courts have imposed an extraordinarily high bar for censorship in advance of publication. President Trump and his brother have been pushing to weaken that precedent.
Shortly after Trump sued to block former Secretary of State John Bolton’s book “The Room Where It Happened,” his brother Robert Trump sought to do the same with Mary Trump’s “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.”
The first salvo in Robert Trump’s legal offensive failed on Thursday after a Queens judge dismissed the lawsuit.
After the president’s father Fred Trump died, then-private citizen Donald Trump, his brother Robert Trump and Mary Trump signed a settlement agreement said to include a non-disclosure agreement in Queens Surrogate’s Court in 2001. The surrogate presiding over matters involving that estate, however, found more than a simple inheritance matter at play.
“The irrefutable conclusion is, regardless of the outcome of this matter, the administration of this estate will not be impacted one iota,” Surrogate Judge Peter Kelley’s ruling stated.
A Dutchess County resident, Robert Trump refiled a nearly identical lawsuit on home turf the next day, characterizing weighty free-speech issues as a distraction.
“No case holds that an otherwise enforceable agreement among family members not to comment about their relationship suddenly violates the First Amendment just because one of those family members later enters politics,” Trump’s attorney Charles Harder wrote in a 14-page memo.
Simon & Schuster’s lawyers describe Robert Trump’s litigation position as evasive.
“Regardless of Mr. Trump’s efforts to make this seem like a small dispute about the breach of a confidentiality provision in a settlement agreement – to which Simon & Schuster is not a party – the relief he requests is among the most extraordinary remedies a litigant can request under the law, a prior restraint of speech on a matter of public interest,” McNamara, from the firm Davis Wright Tremaine,” wrote.
Mary Trump’s lawyer Anne Champion, from Gibson Dunn, called the demand to block the book just months before a presidential election “extraordinary.”
“The First Amendment unquestionably protects Ms. Trump’s right to participate in the electoral debate by writing and having published her work concerning the President’s character and fitness for office, and it independently protects the right of defendant Simon & Schuster, Inc., to publish it as well,” Champion wrote.
With Mary Trump’s tell-all hitting bookstores next month, Robert Trump is trying to avoid his brother’s fate in his quest against Bolton. A federal judge in that case refused to issue a restraining order after copies of the memoirs had been shipped and excerpted widely.
“With hundreds of thousands of copies around the globe — many in newsrooms — the damage is done,” U.S. District Judge Royce Lambert wrote last weekend. “There is no restoring the status quo.”
“Too Much and Never Enough” is scheduled for release on July 28.