First Amendment Clinic releases report on First Amendment implications of Trump White House NDAs<\/p>\n\n\n\n
Analysis: Trump White House NDAs are Likely Unconstitutional<\/em><\/p>\n\n\n\n The nondisclosure agreements (NDAs) that President Donald Trump has required many White House employees to sign \u2013 unlike any previous administration \u2013 are likely unconstitutional, according to an analysis by Cornell Law School\u2019s First Amendment Clinic.<\/p>\n\n\n\n A civil lawsuit filed Oct. 12 by the Department of Justice \u2013 against Stephanie Winston Wolkoff, a former unpaid aide to First Lady Melania Trump and author of a tell-all book \u2013 marks the administration\u2019s first attempt to enforce one of the NDAs.<\/p>\n\n\n\n The case exposes an overbroad agreement that infringes on the First Amendment rights of both government employees and the press, representing \u201ca grave affront to our system of free expression,\u201d according to the clinic\u2019s report, \u201cNondisclosure Agreements in the Trump White Hou<\/a>se<\/a>,\u201d released Oct. 20.<\/p>\n\n\n\n \u201cThe First Amendment enshrines a collective commitment to vibrant public debate on issues of governance,\u201d the report states. \u201cAllowing the White House to stymie damaging revelations for political purposes would subvert the standard of transparency to which we hold our democratically elected officials.\u201d<\/p>\n\n\n\n First Amendment Fellow Tyler Valeska is the lead author of the analysis with Law School student co-authors Michael Mills, Melissa Muse and Anna Whistler.<\/p>\n\n\n\n Said Valeska: \u201cWe think the White House NDAs are unconstitutional in the vast majority of applications.\u201d<\/p>\n\n\n\n Now commonplace in the private sector, corporate NDAs became widespread in Silicon Valley in the 1970s as a means to protect intellectual property, according to the report. They are often employed by political campaigns, including Trump\u2019s and Hillary Clinton\u2019s in 2016, and Trump has used them extensively in his businesses and personal life.<\/p>\n\n\n\n But contrary to public statements by some of his advisers, the researchers say, Trump is the first president to implement private sector-style secrecy agreements for White House staff, reportedly ranging from senior aides to interns.<\/p>\n\n\n\n \u201cPresident Trump\u2019s White House NDAs differ immensely from the practices of previous administrations,\u201d they wrote.<\/p>\n\n\n\n Since the Eisenhower administration, \u201cexecutive privilege\u201d has protected deliberations between presidents and senior advisers to ensure candid discussion of sensitive matters.<\/p>\n\n\n\n Government employees and contractors granted access to classified information must sign Standard Form 312, agreeing not to disclose that information without authorization in the interest of national security.<\/p>\n\n\n\n But the Trump White House NDAs \u2013 instituted in 2017 in reaction to leaks \u2013 appear to go much further, the researchers say, banning disclosure of all \u201cnonpublic, privileged and\/or confidential information,\u201d including any information about Trump\u2019s businesses or family. They also apply indefinitely.<\/p>\n\n\n\n When classified material isn\u2019t at issue, First Amendment jurisprudence generally prohibits prior restraints on speech and government discrimination against speech based on its content or viewpoint. Any such infringements must pass strict legal scrutiny, according to the analysis.<\/p>\n\n\n\n That means the White House NDAs must serve a compelling government interest and be narrowly tailored. Instead, the authors say, the NDAs are \u201cremarkably broad\u201d in scope and the government has \u201cno substantial interest\u201d in hiding information embarrassing to the president.<\/p>\n\n\n\n \u201cA former government official challenging the constitutionality of a White House NDA would have a strong case,\u201d the report states.<\/p>\n\n\n\n Prohibiting government employees\u2019 speech about nonclassified information also infringes on the rights of the press to gather information and receive it from willing sources, the authors argue.<\/p>\n\n\n\n \u201cThis is basic First Amendment theory, that for democracy to function properly you need to know what your government is doing in order to inform opinions about whether or not they\u2019re doing it well,\u201d Valeska said. \u201cThe primary way that we get that information is through the press via government sources.\u201d<\/p>\n\n\n\n The Wolkoff case, the authors concluded, represents a \u201cline in the sand,\u201d with the Justice Department presenting weak legal arguments that the courts and future administrations should reject.<\/p>\n\n\n\n \u201cShould the government prevail, the speech rights of wide swaths of future executive branch employees would be jeopardized,\u201d the report says. \u201cAnd the free flow of information that drives our democracy would be severely inhibited.\u201d<\/p>\n\n\n\n Article by James Dean, Cornell Chronicle<\/em><\/p>\n\n\n\n