Omarosa Manigault-Newman, the former Trump staffer who has made incendiary claims about the president — including that he has used the “n-word” — has complained that the Trump campaign is trying to “silence” her by threatening to enforce a nondisclosure agreement she signed when she started working for Trump on the 2016 campaign.
And indeed that campaign now says it has filed a complaint, in arbitration, against her for violating the terms of that agreement.
Trump attorneys have apparently used three different sets of NDAs: one for the 2016 campaign, one for jobs on the 2020 campaign, and — most controversially — one to work in the White House. It is standard for White House employees to agree not to reveal classified information, but according to the Washington Post, the Trump White House NDA went further, barring discussion of any information learned in the course of employment — as well as any criticism of Trump and his family.
Are such agreements legal? Whether legal or not, are they justifiable? In many cases, the answer to both questions is yes, but the Trump White House NDA potentially violates employees’ First Amendment rights.
And I believe NDAs between private parties can be improved by ensuring that certain sensitive information — like sexual harassment at a company, or on the campaign trail — does not get buried.
The case for NDAs
Nondisclosure agreements, or NDAs, have become controversial in many contexts, but they serve a purpose. When a private employer asks someone to sign an NDA, the person (or entity) is seeking protection against suffering a private harm. An entrepreneur may want to keep her idea from being stolen by someone who works for her; a CEO may want to make sure her company’s customer base is known only in house; or a celebrity may want to keep her personal life private.
These agreements to secrecy are signed as conditions to an exchange. The entrepreneur, employer, and celebrity make particular facts known only because the counter-parties have agreed to keep them secret.
As a term of private contract, secrecy seems reasonable. It facilitates private investment and skilled employment. Things get complicated, however, when the objects of secrecy are a matter of public concern. Such secrets might include details about, say, product or workplace safety or serial sexual assault by a manager or employee of a firm.
Saul Levmore of the University of Chicago Law School and I have recently suggested that the NDA system might be reformed in the following way: Some agreements should be semi-confidential — partly secret and partly public. In contexts that can hurt other people, such as a product defect, some details should be made public so that others can benefit from early warning and exercise deterrence against the manufacturer. Sunshine-in-litigation statutes could mandate partial disclosure, or courts could, on their own, permit the discovery of certain facts.
Other details, however, whose revelation would do more private harm than public good — such as the identity of a victim of sexual harassment at a firm, or the dollar value of a product liability settlement — should be kept private. (Publicity surrounding large settlements can encourage copycat litigation, which may lead plaintiffs to seek blockbuster settlements instead of reasonable redress for wrongs.)
This rationale for semi-confidentiality strongly parallels First Amendment jurisprudence for public employees. If the public’s interest in uncovering a secret fact is strong, it should be made public. Otherwise, secrecy should be permitted.
Manigault-Newman’s agreement appears to be with the Trump campaign, a private organization. But it overlaps with her confidential relationship with the federal government.
Like any other employer, the government has a legitimate interest in managing its employees, and it has its own limited form of an NDA system (setting aside the unusual agreements Trump asked some White House officials to sign). Security clearances act as an initial barrier, and White House officials since the Reagan administration have been asked to pledge not to reveal sensitive information; the wording of that pledge was the subject of dispute into the early 1990s.
Public employees, however, are sometimes permitted to disclose information gained during the course of their employment. The First Amendment provides protection to government workers speaking as private citizens about something that matters to us all — what the law calls “a matter of public concern.” On the other hand, a personal interest in speaking freely about such a matter must be greater than the government’s interest in keeping it quiet.
Courts weigh a number of factors when balancing the interests of the government employer with those of the public employee — whoever has the greatest interest wins. For instance, if the government can show that a substantial national security threat is at stake, it will win. An employee, if she is to stand a chance, most often must demonstrate that her private interest in publicizing information is strongly aligned with the public good.
That body of First Amendment law potentially renders the White House NDAs — as opposed to the campaign NDAs — irrelevant. (In fact, the Washington Post reports that the White House counsel told the people who signed them that they were unenforceable.)
Given that Manigault-Newman’s NDA is between her and the Trump campaign, does the analysis change? The NDA appears to have included a non-disparagement clause that forbade her to “demean or disparage publicly” the campaign, the president, his family members, their companies, and the products and services of those companies.
Trump can probably prevent Manigault Newman from criticizing Ivanka’s clothing line
The objects of secrecy seem well-defined, if quite broad. (Extremely vague NDAs can be ruled unenforceable since it’s unclear what private information is being protected.)
But well-written non-disparagement clauses, even between a private employee and an employer like the Trump campaign, are rarely voided. As a matter of law, a judge will refuse to enforce a sufficiently narrow hush term only if, say, doing so contributes to a crime or endangers public health, safety, or matters of “public concern.”
Would the public be harmed if Manigault-Newman openly disparaged the Ivanka Trump clothing line? One might quibble, though a judge would very likely permit an NDA to protect such matters, since they are private concerns of little public value. But surely the public would be harmed if Manigault-Newman were contractually obligated to keep silent about, say, a pattern of sexual assault between a campaign manager and staff member.
On the other hand, to shift examples, the public might be interested in the decisions forthcoming from a judge, but it can hardly be sensible for the judge’s clerk to be permitted to violate confidentiality. Among other things, the judge would respond by hiring from a narrow pool of people, perhaps close friends, in order to get more reliable clerks.
The NDA system is most visibly broken where public and private life blur. NDAs are at their best in exclusively private relationships, when information shared among parties exerts no negative effects on others. NDAs are at their worst when contractual secrecy causes third parties to suffer — as when a secret settlement hides useful information for other victims.
Negative third-party effects tip the balance toward openness. But to the extent that negative effects are merely subjective and political, the case against secrecy is diminished.
Still, the NDA system in general should be loosened — with the “semi-confidentiality” Levmore and I have proposed, or something similar — so that privately beneficial information can be kept secret and publicly beneficial information can be made open. Semi-confidentiality is especially desirable when secret information involves a pattern of unlawful behavior that can be stopped if exposed. The identity of a harassment victim might be kept private, but that of the perpetrator made public.
Both private and public employees should be able to blow the whistle to deter objective wrongdoing — and encouraged to do so. Contract law requires some loosening to encourage private actors, but the First Amendment can already protect government whistleblowers, so long as the interests balance in the public’s favor.
Whether public whistleblowers have signed White House NDAs is irrelevant to the scope of their rights.
Frank Fagan is associate professor of law at EDHEC Business School, and a member of the Legal EDHEC research center. He has written, with Saul Levmore of the University of Chicago Law School, on contractual secrecy and mandated disclosure.
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