By Porter Anderson, Editor-in-Chief | @Porter_Anderson
Simon & Schuster ‘Will Not Be Intimidated’In a report from CNN’s Kaitlan Collins, it has come to light that Charles Harder, litigation counsel for the Trump campaign, sent a letter to Simon & Schuster one day prior to publication of Omarosa Manigault Newman’s Unhinged: An Insider’s Look at the Trump White House, threatening litigation if Simon’s Gallery Books publication wasn’t stopped.
The tactic is now familiar to publishing industry players and readers of Publishing Perspectives: Trump’s attorneys issued a cease-and-desist threat in January against Macmillan’s publication of Michael Wolff’s Fire and Fury: Inside the Trump White House.
A copy of this week’s letter from Charles Harder, dated August 13, is here (PDF). The letter tells Simon & Schuster, “You are now on notice” that Donald J. Trump for President, Inc., “will have claims against you” for publishing Unhinged.
And a copy of a letter dated August 15, the day after publication, from Elizabeth McNamara from Simon & Schuster’s outside counsel, is here. (PDF).
McNamara writes to Harder, in part:
“While your letter generally claims that excerpts from the book contain ‘disparaging statements,’ it is quite telling that at no point do you claim that any specific statement in the book is false.
“Your client does not have a viable legal claim merely because unspecified truthful statements in the book may embarrass the president or his associates.
“At base, your letter is nothing more than an obvious attempt to silence legitimate criticism of the president.
“Put simply, the book’s purpose is to inform the public.”
McNamara’s response letter for the publisher to Trump’s attorney goes on to say, “Should you pursue litigation against S&S, we are confident that documents related to the contents of the book in the possession of President Trump, his family members, his businesses, the Trump Campaign, and his administration will prove particularly relevant to our defense.”
The campaign’s argument is that the publisher would be in jeopardy if Manigault Newman had broken a non-disclosure agreement.
Simon & Schuster’s McNamara writes, “Your letter recounts at great length the details of a non-disclosure agreement between former White House senior staffer Omarosa Manigault-Newman and the Trump Campaign (the ‘NDA’), and threatens that publication of Ms. Manigault-Newman’s book, Unhinged: An Insider’s Account of the Trump White House (the “book”), will subject S&S to ‘substantial monetary damages and punitive damages’ for various legal claims arising from the book and the NDA. …
“While your letter generally claims that excerpts from the book contain ‘disparaging statements,’ it is quite telling that at no point do you claim that any specific statement in the book is false.” [Emphasis McNamara’s.] … Private contracts like the NDA [non-disclosure agreement] may not be used to censor former or current government officials from speaking about non-classified information learned during the course of their public employment.”
Simon & Schuster’s corporate communications director Adam Rothberg, tells CNN for Collins’ report, “Despite various legal claims and threats made by representatives of the Trump campaign, Gallery Books and Simon & Schuster are proceeding as planned with publication of Unhinged.”
Rothberg asserts that the publisher is “acting well within our rights and responsibilities as a publisher.”
And McNamara’s response letter rebukes Trump’s counsel, adding, “My clients will not be intimidated by hollow legal threats and have proceeded with publication of the book as scheduled.”
Both Attorneys Have Been Here Before
In January, it was Charles Harder (of Harder Mirell & Abrams) who attempted prior restraint against another Big Five publisher, Macmillan, demanding that its Henry Holt imprint not publish Michael Wolff’s Fire and Fury: Inside the Trump White House..
“We must demand that President Trump understand and abide by the First Amendment of our Constitution.”John Sargent, Macmillan
In a stinging legal retort, the same attorney now writing for Simon & Schuster, Elizabeth McNamara, called the Trumpian effort to halt that book “patently ridiculous,” and wrote that Harder’s letter in that instance appeared “to be designed to silence legitimate criticism. This is the antithesis of an actionable legal claim.”
As recently as late May, Macmillan CEO John Sargent was given a resounding ovation by trade visitors to BookExpo in New York City in gratitude for his own eloquent response to the Trump White House. Carolyn Reidy, CEO of the CBS-owned Simon & Schuster, was on the stage with Sargent at the time, and with Penguin Randon House’s Markus Dohle.
In that January 8 takedown of Trump’s effort to silence his publishing house, Sargent wrote, in part, “A demand to cease and desist publication—a clear effort by the President of the United States to intimidate a publisher into halting publication of an important book on the workings of the government—is an attempt to achieve what is called prior restraint.
“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. …
“As citizens we must demand that President Trump understand and abide by the First Amendment of our Constitution.”
As it happens, this week’s new such effort by Donald Trump at prior restraint finds the publishing industry more aware, better coordinated, and issuing its own warnings against such attempts to curtail expression.
The Industry Context: Freedom To Publish
The timing of the revelation of the Trump attempt to quash Unhinged is interesting, in that it coincides with Thursday’s (August 16) publication by hundreds of newspapers of editorials on the danger of Trump’s inflammatory rhetoric about the news media as “fake news” and “the enemy of the people.”
The coordinated effort by editorial board members in many parts of the country, hashtagged #freepress, was led by The Boston Globe, which proposed the concerted action and wrote its own editorial, Journalists Are Not the Enemy. The New York Times’ editorial board weighed in to announce that it would leverage the participation of some of the smallest and farthest-flung news outlets in the country by calling attention to their contributions to the effort.
In its own editorial, the Times’ board wrote, “Criticizing the news media—for underplaying or overplaying stories, for getting something wrong—is entirely right. News reporters and editors are human, and make mistakes. Correcting them is core to our job. But insisting that truths you don’t like are “fake news” is dangerous to the lifeblood of democracy. And calling journalists the “enemy of the people” is dangerous, period.”
For his part, Donald Trump tweeted:
What Trump has not responded to are reports like this one from Axios’ Dan Primack, revealing that The Boston Globe has received a threat, apparently in response to its leadership of today’s nationwide editorial resistance to Trump’s media attacks.
“The Boston Globe today,” writes Primack, “received a threatening telephone call that is being taken seriously by local and federal authorities, according to an email sent by a facilities manager to other tenants at the newspaper’s headquarters.”
This is exactly the kind of concern mounting among publishers of all kinds, as Trump’s denigration of the nation’s constitutionally ordained rights of expression continue to escalate.
And critics will note that, as the Waterstones’ Twitter advertisement from August 14 indicates–two new dispatches from America—the Manigault Newman book overshadowed the release from Penguin Random House’s Dutton of Craig Unger’s House of Trump, House of Putin: The Untold Story of Donald Trump and the Russian Mafia—a book that, according to promotional copy, is “the first comprehensive investigation into the decades-long relationship among Donald Trump, Vladimir Putin, and the Russian Mafia that ultimately helped win Trump the White House.”
Unger, the editor of Boston Magazine, is the former deputy editor of The New York Observer and the author of a similarly structured expose, House of Bush, House of Saud (Scribner, 2004).