Trump's Lawyers Apparently Unfamiliar With Streisand Effect Or 1st Amendment's Limits On Prior Restraint

from the someone-send-them-the-big-lebowski dept

Over this past weekend, it was revealed that (1) the adult film actress Stormy Daniels (real name: Stephanie Clifford), who has claimed she had an affair with Donald Trump and then was given $130,000 to stay silent about it, is scheduled to appear on 60 Minutes next weekend and (2) President Trump's lawyers are considering going to court to block CBS from airing it. This is silly, dumb and not actually allowed by the law.

Lawyers associated with President Donald Trump are considering legal action to stop 60 Minutes from airing an interview with Stephanie Clifford, the adult film performer and director who goes by Stormy Daniels, BuzzFeed News has learned. “We understand from well-placed sources they are preparing to file for a legal injunction to prevent it from airing,” a person informed of the preparations told BuzzFeed News on Saturday evening.

Someone should send his lawyers the Supreme Court's ruling in New York Times v. United States, in which the Nixon White House tried (and failed) to block newspapers from publishing the Pentagon Papers, noting that it would be obvious prior restraint to block such a publication. As Justice Black noted in a concurring opinion:

Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. 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.

If that's too complicated, someone could just send them renowned legal scholar Walter Sobchak's analysis of the issue of prior restraint. That might be more their speed:

Of course, even without it being blatantly unconstitutional, there's the general Streisand Effect nature of trying to stifle the interview -- which seems guaranteed to just make that many more people interested in what Clifford has to say about the President. One could argue that this was already going to get a ton of attention so perhaps it wouldn't make that big a difference on that front, but don't underestimate just how much free advertising this gets the interview... and how it makes more people wonder why the President is so focused on silencing Clifford.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 60 minutes, donald trump, first amendment, free speech, prior restraint, stephanie clifford, stormy daniels