Confidentiality Agreement Tested As First Amendment Trumps President’s Prior Restraint Effort

Adult film actress Stephanie Clifford, also known as Stormy Daniels, has been making headlines since she publicly disclosed her past “intimate relationship” with President Donald Trump despite being under an iron clad confidentiality agreement that is now being tested under contract theory and First Amendment law in a Los Angeles district court.

Clifford is at the center of a legal dispute regarding her 60 Minutes interview with Anderson Cooper, which was taped despite an arbitrator’s ruling last week that reaffirmed Clifford’s obligation to remain silent about the alleged affair, in accordance with the non-disclosure agreement that she signed in 2016.

Now Trump’s legal team is considering seeking injunctive relief in an effort to keep CBS from airing the interview, which has spawned much discussion regarding the major questions of contract law and First Amendment law, as the most powerful man in the world attempts to prevent the release of bad press. Based on legal precedent relating to these issues, his attempts are not likely to be successful. 

Here’s why: Any attempt by Trump to stop Clifford’s segment from airing implicates the First Amendment’s free speech clause, as it would require naming CBS as a defendant in the federal breach of contract action and, therefore, would likely be analyzed as an exercise of unconstitutional prior restraint.

Per the decision in landmark U.S. Supreme Court case Near v. Minnesota283U.S. 697 (1931) prior restraint of protected speech is unconstitutional, except in extremely limited circumstances, such those involving risks to national security issues. Under the First Amendment to the U.S. Constitution, determining the constitutionality of prior restraint garners strict scrutiny–the highest standard of analysis–and precedent on this issue does not readily support Trump’s position, because it is unlikely that national security will be compromised by an adult film star’s disclosure of her personal relationship with the President of the United States, over a decade ago. The odds that Trump will be able to legally prohibit CBS from airing Clifford’s interview are especially low given that any obligations on Clifford to refrain from speaking about the alleged affair arose from a private agreement between Clifford and Trump, to which CBS was not a party and, as such, to which CBS is not bound. 

American World War II poster by Seymour R. Goff

It should be noted that, were the disclosures to involve confidential business information–in the form of intellectual property, undisclosed inventions or works of authorship, trade secrets, and other information typically protected under a confidentiality agreement (also known as a non-disclosure agreement or NDA), an argument for irreparable harm could potentially be made and disclosure could perhaps be prevented by way of injunctive relief order from the court before disclosure. However, in this case, the irreparable harm argument is unavailable because the disclosures do not involve intellectual property rights, and further, political speech has historically been given the highest degree of protection under the First Amendment.

Given the constitutional issues triggered by this controversy, Trump would have better luck seeking damages from Clifford, on a breach of contract theory, following the segment’s release, though that will not prevent the public embarrassment the President is likely to face if the segment airs. Either way, Clifford’s attorney, Michael Avenatti, is actively working on Clifford’s behalf to undermine the validity of her agreement with Trump arguing invalidity due to the absence of Trump’s signature from the document. Presumably, the desired result of this approach is Clifford’s release from any binding effect of the agreement’s confidentiality terms, which would allow her to “speak openly and freely” about the supposed extramarital relationship. 

When it comes to porn stars and presidents, loose lips can sink more than just ships.

David N. Sharifi, Esq.Author: David N. Sharifi, Esq. is a Los Angeles based intellectual property attorney and technology startup consultant with focuses in entertainment law, emerging technologies, federal trademark registration, and the “Internet of Things”. David has been recognized as one of the Top 30 Most Influential Attorneys in Digital Media and E-Commerce Law by the Los Angeles Business Journal. Office: Ph: 310-751-0181;

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