The Trump campaign has reportedly filed an arbitration action against former aide Omarosa Manigault Newman in an effort to compel her to cease from publicly criticizing the president. The campaign is seeking to enforce a provision in Manigault Newman’s employment contract that purportedly prohibits her from disparaging her ex-boss. What is especially frightening about the campaign’s bid to silence Manigault Newman is that under existing law, the campaign might actually succeed. Fortunately, there still is one actor that can stop the Trump campaign from squelching Manigault Newman’s speech: New York state.
Lawmakers in Albany should act swiftly to ensure that the Trump campaign cannot gag former employees and that other candidates cannot follow suit. The Empire State should enact a flat-out ban on nondisparagement provisions in campaign employment contracts, and other states should do the same. States must ensure that their own laws cannot be used to shield candidates and elected officials from public criticism.
The terms of the Trump campaign’s contract with one former employee have become public as part of a case filed in federal court in New York, and other employees of the Trump campaign reportedly signed a substantively identical agreement. Three provisions of that contract are especially relevant to Manigault Newman’s case. The first is the nondisparagement clause, which says that during and after their service with the Trump campaign, employees “promise and agree not to demean or disparage publicly” the campaign, Trump himself, any Trump family member, or any company that Trump or his family members own or control. Nondisparagement clauses are quite common in the private sector, but Trump appears to have used these provisions much more aggressively and extensively than previous candidates for public office.
It’s doubtful that a nondisparagement agreement between the Trump White House and any of its employees could be enforced in court. Federal whistleblower statutes broadly protect the right of federal employees to speak out about violations of law, gross mismanagement, and other misdeeds. And the Supreme Court has held that public employees have a First Amendment right to speak “as a citizen upon matters of public concern.” But a nondisparagement agreement between the Trump campaign and a former employee is a different story. Federal whistleblower statutes generally do not protect campaign employees. And the First Amendment only applies to so-called state actors, which the Trump campaign is not. Perhaps a court would refuse to enforce the nondisparagement agreement between the Trump campaign and Manigault Newman based on the general doctrine that contractual clauses that violate public policy can be voided. But several courts have held that nondisparagement provisions can indeed be enforced as long as they are not being used to prevent disclosure of illegal activity. While Manigault Newman has accused Trump of making vile racist and sexist comments, racism and sexism are not illegal activity.
In any event, the question might never be resolved by a court. That is due to a second significant provision of the contract: the arbitration clause. This clause says that any dispute arising under the agreement may be submitted by Trump or his campaign to binding arbitration. The Federal Arbitration Act of 1925 generally requires courts to honor such provisions, and while the 1925 law explicitly excludes all “workers engaged in foreign or interstate commerce” from its reach, the Supreme Court—in a 2001 decision authored by Justice Anthony Kennedy—adopted an extraordinarily narrow interpretation of that exclusion. (The Supreme Court doubled down on that holding this past May in a case called Epic Systems v. Lewis.) The upshot is that a private arbitrator will most likely resolve the dispute between the Trump campaign and Manigault Newman, and federal courts will then be required to enforce the arbitrator’s decision unless they find that the arbitration proceeding was tainted by corruption, fraud, or other misconduct. If the arbitrator decides that the nondisparagement clause should be enforced, Manigault Newman’s judicial remedies are limited.
The third important element of the contract is the choice-of-law clause, which says that all “claims with respect to the enforceability of this agreement must be interpreted and construed pursuant to the laws of the State of New York.” So, the private arbitrator who resolves the dispute between the Trump campaign and Manigault Newman would have to apply the laws of New York state if her contract is similar to the one that’s been publicly disclosed.
Who decides whether nondisparagement clauses are enforceable under New York state law? Naturally, New York state lawmakers. State legislatures make all sorts of rules about the enforceability of contracts. In California, for example, noncompete clauses in employment contracts are void. Washington state prohibits provisions that purport to prevent employees from disclosing or discussing workplace sexual harassment or sexual assault. The New York state legislature likewise could choose to render nondisparagement clauses in all or a subset of employment contracts unenforceable.
University of San Diego law professor Orly Lobel, among others, has argued for broad reforms along these lines. The counterargument is that employers and employees should be permitted to enter into contracts that benefit them both—if an employer values its reputation more than employee values his right to speak freely, then the employee should be allowed to give up that right in exchange for some other benefit that he values more (e.g., a pay raise). This counterargument is less persuasive in contexts where employers and employees do not bargain on equal terms and where employers can force employees to sign nondisparagement clauses without the employee getting anything extra in return. Such contexts are common, which is one reason why the widespread use of nondisparagement agreements should be a serious cause for concern.
Nondisparagement agreements are particularly problematic in the context of political campaigns. There, the public has an overwhelming interest in ensuring that former campaign employees can speak freely about their ex-bosses. If a candidate abuses his subordinates, uses racial slurs, or otherwise engages in conduct unbecoming of an elected official, voters ought to know. Nondisparagement agreements potentially keep that information under wraps.
One path forward for New York state lawmakers would be to pass a narrow ban on the enforcement of nondisparagement clauses between political campaigns and their employees. New York could apply the law to any campaign-related contract, whether signed in the past or in the future.
The Trump campaign might argue that retroactive application of the new law violates its rights under the Constitution’s Contracts and Due Process clauses, but Supreme Court precedent would favor New York. According to the court, retroactive economic legislation passes constitutional muster if it serves a “significant” and “legitimate” public purpose through “reasonable” or “rational” means. New York’s interest in ensuring that voters have access to information about elected officials is surely significant and legitimate, and a ban on nondisparagement clauses in campaign employment contracts is a straightforward means of achieving that goal.
Whatever the outcome of the Manigault Newman case, the Trump campaign’s efforts to enforce nondisparagement clauses against former employees illustrate the potentially pernicious effects of these provisions. And since these provisions are primarily governed by state law, it’s up to the states to police their use. Hopefully, the attention generated by the dispute between Trump and Manigault Newman will spur New York and other states to action. Trump appears to be the first candidate or elected official who has sought to use nondisparagement clauses to silence his critics. May he also be the last.
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