Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
Closed Expands Expression
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The Dutchess County Supreme Court of the State of New York vacated the Temporary Restraining Order (TRO) against Mary L. Trump and denied a motion for a preliminary injunction against Mary L. Trump and Simon & Schuster, the publisher of her book about her uncle U.S. President Donald Trump. Robert S. Trump, the brother of Donald Trump, brought the actions to prevent the defendants from publishing, printing or distributing any book or any portions of the Book entitled: ‘Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man’, in any medium containing descriptions or accounts of Ms. Trump’s relationship with the plaintiff, Donald Trump, or Maryanne Trump Barry. On 1 July, the Appellate Division lifted the TRO against Simon & Schuster finding it was not party to a settlement agreement whose confidentiality provision allegedly precluded Mary Trump from exercising her First Amendment right. In arriving at its decision, the Supreme Court reasoned that the plaintiff had failed to establish any of the requirements for a preliminary injunction, such as irreparable harm or likelihood of success, against either of the parties. The Court further found that the settlement agreement was no longer relevant to the present case, as what once concerned family matters now involved the President of the United States who is standing for re-election, and therefore is of significant public interest. Under such circumstances, an injunction would not only violate the public’s right to know, it would also be moot considering that thousands of copies of the Book were already printed and distributed to booksellers.
The plaintiff in the case was Robert Trump, a brother to Donald J. Trump, the President of the United States. The first defendant was Mary L. Trump, niece to the plaintiff and President Donald Trump. The second defendant Simon & Schuster is an international book publisher and in this instance, publisher of the Book – ‘Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man’ authored by the first defendant.
Robert Trump’s father, Frederick Christ Trump (also known as Fred C. Trump), a famous figure in New York real estate, died on June 25, 1999, and his mother, Mary Anne Trump, died a year later. Litigation ensued at the instance of Mary L. Trump and her brother Fred C. Trump III concerning the estates of their grandparents Fred Trump and of Mary Anne Trump, and multiple intra-family disputes were litigated. In order that the public would not know the details of the resolution of the probate dispute and that the litigants would be protected, a confidentiality provision was included in the settlement agreement (Settlement Agreement) containing reciprocal provisions which bar any party to the agreement from disclosure of the terms of the settlement or the description of the litigation or their relationships without consent of the other parties.
On June 15, 2020, Mary L. Trump announced that she would be releasing a Book titled “Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man” which would be an insider’s narrative about President Donald Trump and the Trump family. The plaintiff Robert Trump became aware of the announcement and immediately instituted an action at the Queens Surrogates Court in New York. It was the same court where the probate proceedings on the will of Fred C. Trump, the plaintiff’s father and the first defendant’s grandfather, were held. However the plaintiff’s action was dismissed for lack of jurisdiction by Hon Peter J. Kelly of the Surrogate Court on June 25, 2020 when he drew a distinction between the probate matter that had ended in 2001 and the current claim where the plaintiff was seeking a declaratory judgment. The Surrogate Court advised that the plaintiff’s action should be instituted at the Supreme Court as the appropriate forum.
Subsequently, the plaintiff proceeded to the Dutchess County Supreme Court on June 26, 2020 where he filed Summons and Verified Complaint against the defendants. The Plaintiff in his Verified Complaint sought specific performance of the Settlement Agreement, an allegation of anticipatory breach of the Agreement and claim for monetary damages. He also filed an Order to Show Cause seeking a Temporary Restraining Order (TRO) and a preliminary injunction against the defendants to halt publication of the Book. On Monday, June 29, 2020 the Court conducted a chambers conference by Skype with counsel representing all parties. On Tuesday June 30, 2020 the Court granted a TRO restraining and enjoining both defendants, Mary L. Trump and her publisher Simon & Schuster, from further activities in publishing and distributing the Book and gave July 10, 2020 as a return date for hearing of the argument for the plaintiff’s injunction and defense by the defendants.
Dissatisfied with the grant of the TRO, the defendants on July 1, 2020 approached the Appellate Division of the Supreme Court (Second Department) with separate applications to vacate or modify the TRO granted by the Supreme Court. Upon hearing oral argument from the defendants only, Judge Scheinkman of the Appellate Division by Decision and Order on Application dated July 1, 2020 vacated the TRO as against Simon & Schuster and modified the TRO as against Mary L. Trump. On July 2, 2020 Ms. Trump filed an Affidavit in support of her opposition to the plaintiff’s motion for a preliminary injunction. In the said Affidavit, Ms Trump deposed to the facts that from May 7, 2020 when Simon & Schuster agreed to publish her Book, she relinquished all control over the Book including publishing, printing and distribution of the Book to Simon & Schuster and she therefore cannot speak to any matters about the Book after that date.
On Friday July 10, when the matter came up for hearing at the Supreme Court, Judge Greenwald adopted the Order of the Appellate Division as handed down and ordered the adjournment of the hearing to Monday July 13, 2020 when the motion for preliminary injunction was finally heard.
The plaintiff’s case was that by virtue of the Settlement Agreement of April 10, 2001 to which Mary L. Trump was a signatory, she was estopped from releasing any information about the family or any one of them including by a book without consent. He further submitted that Simon & Schuster should be enjoined in the preliminary injunction as it is an agent for Ms. Trump and working to publish the Book on the instruction of Ms. Trump. Mary L. Trump questioned the validity of the Agreement and indeed the terms of the agreement. She further argued that her right to publish and release the Book was a First Amendment right that cannot be restricted by contractual agreement. She asked the Court to vacate the TRO against her and deny the plaintiff’s motion for a preliminary injunction. Simon & Schuster stated that it was not a party to the Settlement Agreement and was not aware of any of such agreement at the time of contracting to publish the Book for Ms Trump. Simon & Schuster further submitted that the contents of the Book are about Ms Trump’s personal perspectives and critical insights of Donald J. Trump, as president, as well as his family relationships and information related to her family’s financial dealings. Simon & Schuster argued that these matters are newsworthy and valuable information for citizens and that, as such, restraining publication would equate to a prior restraint of expression on a matter of public interest and would be unconstitutional, as it infringes upon First Amendment protected speech. Simon & Schuster therefore urged the Court to deny the motion for preliminary injunction.
Judge Hal B. Greenwald delivered the Decision and Order of the Dutchess County Supreme Court of the State of New York. The main issue the Court considered was whether the plaintiff was entitled to a preliminary injunction against the defendants. Having noted that the plaintiff premised his case on the Settlement Agreement of 2001 to which only Mary L. Trump was a signatory, the Court swiftly considered the propriety and validity of seeking to enjoin Simon & Schuster in the preliminary injunction before proceeding to determine whether the preliminary injunction could be sustained against Mary L. Trump. The Court noted that the decision to grant or deny a preliminary injunction rests in its sound discretion and that as the Court is entrusted with such latitude of discretion, a party seeking such preliminary injunction has a duty to show the Court that he is entitled to the injunction by placing before the Court “clear and convincing evidence” Liotta v Mattone, 71 A.D.3d 741 (2nd Dep’t, 2010). The Court further stated that three requirements must be met for a preliminary injunction to be granted: (1) likelihood of success on the merits, (2) irreparable injury absent granting of a preliminary injunction, (3) and a balancing of the equities in the movant’s favor.
SIMON & SCHUSTER
Likelihood of success on the merits
The Court noted that two of the causes of action by the plaintiff directly refer to the Settlement Agreement, namely the claim for money damages against Ms. Trump for breach of contract, and specific performance. The Court reiterated the fact that Simon & Schuster was not a party to the Settlement Agreement and as such cannot be held liable for a breach of a contract or to specifically perform a contract it was not a party to. In support of this view, the Court cited the cases of Black car & Livery Ins., Inc. v H & W Brokerage, Inc, 28 A.D.3d 595 (2nd Dep’t, 2006) (see Blank v. Noumair, 239 A.D.2d 534, (2nd Dep’t, 1997); Walz v. Todd & Honeywell, 195 A.D.2d 455, (2nd Dep’t, 1993). In the circumstances, the Court held that there could be no cause of action against Simon & Schuster either for breach of contract or specific performance, and thus the plaintiff had a zero likelihood of success on the merits in this case.
The Court noted that the plaintiff claims that the release of the Book which contains confidential information is the irreparable harm. The Court however pointed out that the Trump family members had been commenting on the Agreement and thousands of copies of the Book were already in circulation around the country with booksellers. The Court stated that the real harm here must be to the party seeking an injunction and that harm must be proved. In the circumstances however, the Court said that if there is any harm it would ensue from stopping release of the Book to the public who have a right to know and even more so when the Book is about the nation’s President who is standing for re-election. In the words of Judge Greenwald, the Court noted that “The Trumps were local in 2001. The leader of the Trump family in 2020 is global. Yet, this action was brought by Robert L. Trump and no one else. It is he who had to substantiate a claim for irreparable harm, no other Trump family member is specified.” [Pg.9] The Court cited the recent decision of the District Court of Columbia in United States v Bolton, 2020 WL 3401940 where the plaintiff sought to have the court order the publisher, “…to take any and all available steps to retrieve and destroy any copies of the Book that may be in the possession of any third party.”, the court refused to do so. The Court noted that in that case, “Bolton was dealing with information pertaining to national security, not 20-year-old family history.” [P. 9]
Balance of Equities
As to balancing of equities, the Court stated that since there was no likelihood of success against Simon & Schuster as it was not part of the Agreement and there was no evidence of irreparable harm likely to be occasioned to the plaintiff by not granting the injunction, the balancing of equities stood in favor of Simon & Schuster.
MARY L. TRUMP
Likelihood of success on the merits
The Court noted that the plaintiff claimed that irreparable harm would be occasioned if the confidential information contained in the Book was released to the public. In this regard, the Court said that the plaintiff was unaware of the details of the Book and it was not convinced that the plaintiff could prove the likelihood of success of his case. On the other hand, the Court noted that there was already much information about the plaintiff in the public arena. The Court therefore was not convinced that the plaintiff had shown the likelihood of success of his case against the defendant – even if the standards of likelihood were to be relaxed. The Court therefore held that the plaintiff had not “demonstrated by ‘clear and convincing’ evidence that he has a likelihood of success on the merits of his case.” [P. 9]
The Court gave a robust view on the concept of irreparable harm at this stage. In its view the standard of irreparable harm is high and could not be proved by means of a contract’s clause. The Court cited the case of Eastview Mall, LLC v. Grace Holmes, Inc., 182 A.D.3d 1057, (4th Dep’t, 2020) where the court held that “[i]rreparable injury, for purposes of equity, … mean[s] any injury for which money damages are insufficient” [Pg.11]. To establish “irreparable harm” therefore means that such harm must not be one that can be remedied with money. In the plaintiff’s case as disclosed in the Verified Complaint it is obvious and logical that the remedy for the harm alleged by the plaintiff is monetary. It therefore follows that whatever the harm to the plaintiff in this case, it is not irreparable. The Court further stated that it is not just enough for the plaintiff to disclose the possibility of an irreparable harm, he must also establish that there is a likelihood of irreparable harm.
While reiterating that obtaining an injunction is a matter of discretion for the Court, Judge Greenwald stressed a party cannot be entitled to one by merely entering into a contract because no one can contract for a right to injunctive relief. Further, the Court cited the case of Art Capital Grp., LLC v. Getty Images, Inc., 24 Misc. 3d 1247(A), 2009 WL 2913531 (N.Y. Sup) to hold that where injury has already been sustained, there can be no irreparable harm anymore. The Court pointed out that that was the situation in the present case as thousands of copies of the Book were already in the hands of third parties (booksellers) so whatever injury it was sought to prevent would have been sustained already. The Court therefore concluded that the plaintiff failed to establish how the release of the Book would occasion a direct, irreparable harm to him for him to be entitled to an injunction since his allegations were merely conclusory and unsubstantiated. It should also be emphasized that the focus of the Book is Donald Trump and not Robert Trump and so the plaintiff must show how the irreparable harm constitutes a direct, irreparable harm to his person, failing which his motion for a preliminary injunction will fail.
Balance of Equities
The Court went on to say that the balancing of the equities must be between the plaintiff who stands to suffer irreparable harm and the defendant. It added, however, that it was clear that the information contained in the Book concerned the President of the United States who was not even a party in the current suit.
The Court stressed the fact that the person around whom the Book’s contents revolve is the President of the United States who is standing for re-election in the current year and that this therefore goes to the root of the public’ right to know. The Court noted that the right of the public to know about their President, who is also a Presidential candidate in the forthcoming election, underscores the requirement of balancing of the equities. The Court then held that to occasion a prior restraint on the Book would offend public policy. In driving this position home, the Court quoted Justice Scheinkman of the Appellate Division of the Supreme Court in his Order July 1, 2020 on the defendants’ earlier application to vacate the TRO:
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 may be considerably heightened by that real estate developer now being President of the United States and a current candidate for re-election. [Pg. 14]
The Court further noted that the confidentiality provision contained in the Settlement Agreement which was meant to resolve the probate-related disputes that resulted in litigation at the Surrogate Court apparently was meant to protect the financial part of the Agreement which may be of no interest now, but might have been in 2001. In the Court’s opinion, the non-financial part of the Agreement comprising the family relationships will evidently be of interest to the American public now that the Presidential election is approaching.
The Court took significant note of the fact that at the appellate level and before the instant Court, Mary L. Trump submitted arguments in respect of First Amendment and prior restraint backed up with caselaw. In her argument, Mary L. Trump characterized the Book as “political speech” citing the case of. Procter & Gamble v Bankers Trust Co., 78 F.3d 219 (6th Cir.1996). She also hinged her defence on “Freedom of speech” as decided in N.Y. Times Co. v Sullivan, 376 U.S.254 (1964). Mary L. Trump argued that prior restraint is deemed unconstitutional relying on the case of Neb. Press Ass’n v Stuart, 427 U.S. 539 (1976). In emphasizing free speech, the Court cited the case of CBS, Inc. v Young 522 F.2d 234 (6th Cir. 1975); Chase v Robson, 435 F.2d 1059 (7th Cir. 1970) to establish that even where litigation is involved, and an injunction sought to prevent participants from addressing the media on the case, the injunction was denied.
The following cases of Nihon Keizai Shimbun, Inc. v Comline Business Data, Inc., 166 F.3d 65 (2d Cir. 1999), Dallas Cowboys Cheerleaders, Inc. v Pussycat Cinema, Ltd., 604 F.2d 200 (United States Court of Appeals, Second Circuit, 1979) , Coca-Cola Company v Purdy, 382 F.3d 774 (United States Court of Appeals, Eighth Circuit, 2004), Macdonald v Clinger, 84 A.D.2d 482 (4th Dep’t, 1982) and Interplay Entertainment Corp. v Topware Interactive, Inc., 751 F. Supp. 2d (United States District Court, C.D. California, 2016) relied upon by the plaintiff were all found to be inapplicable.
The Court noted that the plaintiff had failed to show that any damages would flow either to himself individually or to the public if the Book was published. Further, he had failed to establish any of the three requirements for a preliminary injunction, and has made the application without the knowledge that the Book has been published.
In conclusion the Court noted the plaintiff’s failure to justify a preliminary injunction and prior restraint of free speech protected by First Amendment and that copies of the Book were already with people across the country. On this basis granting an injunction in itself at this stage will be moot. Justice Greenwald clearly stated that “There is no doubt that the Book is out in the public eye in significant quantities and has reached millions of people by the tremendous attention it has gained by the media. Another “balancing” test for the Court is between plaintiff and S&S. Comparing the potential enormous cost and logistical nightmare of stopping the publication, recalling and removing hundreds of thousands of books from all types of booksellers, brick and mortar and virtual, libraries and private citizens, is an insurmountable task at this time. To quote United States v. Bolton, 2020 WL 3401940 (United States District Court, District of Columbia)( Lambeth, J.) “By the looks of it the horse is not just out of the barn, it is out of the country.” [Pg.18] Consequently, the Court vacated the TRO against Mary L. Trump and denied the preliminary injunction sought against Mary L. Trump and her publisher, Simon & Schuster.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by denying the preliminary injunction sought against the two defendants and vacating the TRO issued earlier against Mary L. Trump. In so doing the Court quashed attempts by the Trump family to silence core political speech on important issues of public concern. The First Amendment forbids prior restraints because they are intolerable infringements on the right to participate in democracy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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