NEW YORK, NY. — On June 1, 2020, Protect Democracy, Bowles & Johnson PLLC, and Ballard Spahr LLP filed a class-action lawsuit today on behalf of Jessica Denson and other former 2016 Trump campaign workers, challenging the Trump campaign’s use of ambiguous and overly broad nondisclosure and non-disparagement clauses (the “NDAs”) in their employment contracts to silence former campaign workers. The lawsuit seeks a declaratory judgment that the NDAs are invalid and an injunction prohibiting their enforcement. The case was filed in New York state court. The complaint can be found here.
“The President’s campaign — the very one that touted, ‘The silent majority is silent no more’ — spent two years attempting to punish me for speaking out, and have kept many more from ever trying,” says lead plaintiff, Jessica Denson. “These NDAs represent the urgent threat to freedom, where in a crucial election year and in the midst of a pandemic, scientists are muzzled, watchdogs are fired, and sycophancy and silence hide vital truths from the American people.”
“NDAs are not inherently illegal,” says Bowles & Johnson attorney, David Bowles. “The law allows companies to use NDAs to protect legitimate interests, such as trade secrets and customer lists. But the Trump campaign’s NDA goes well beyond what is allowed by the law, and the campaign has used it to retaliate against my client in an attempt to silence her, and has very likely intimidated others from speaking out. The courts should strike down these NDAs.”
The Trump campaign’s NDAs are particularly oppressive. They prohibit individuals like Ms. Denson from disclosing any information “that Mr. Trump insists remain private” and from “demean[ing] or disparag[ing] publicly” President Trump, any member of his family, or any of his and his family’s companies — forever. The campaign’s NDAs purport to bind Ms. Denson and other former 2016 Trump campaign employees, contractors, and volunteers to this day, meaning they are banned from criticizing the current President of the United States and from sharing their views and experiences now, during this year’s election, or ever.
“The Trump campaign’s NDAs are anathema to our profound national commitment to free speech, free press, and uninhibited debate on matters of public concern,” says Protect Democracy Counsel, John Langford.
As the complaint details, the state and federal constitutional protections of speech and the press render NDAs unenforceable where, as here, the public interest in the prohibited speech outweighs any interest in enforcing a contract of silence. The NDAs also are unlawful under New York contract law because they are indefinite, unconscionable, unreasonable, and otherwise against public policy.
The Trump campaign’s NDAs are prolific. In 2016, the Trump campaign required all of its staffers to sign contracts containing the NDAs. Increasingly, other campaigns are turning to similar contracts, threatening to ban more and more Americans from criticizing candidates or disclosing broad swaths of information relevant to voters.
These NDAs are not just empty threats. For its part, the Trump campaign has routinely threatened and attempted to enforce its NDAs to stop former campaign employees from engaging in speech related to matters of public concern, including their views on the President’s time in office. The Trump campaign also has used the NDAs to retaliate against former workers who file harassment and discrimination claims, including against lead plaintiff Ms. Denson, who was required to sign the NDAs when hired as a national phone bank administrator in August of 2016..
On February 27, 2019, the Trump campaign’s former attorney, Michael Cohen, was asked about these NDAs under oath before Congress. When asked whether “in the use of the NDA – of these types of NDAs with this type of language, and later, when Donald Trump sought to enforce them, that he intended to prevent people from coming forward with claims of wrongdoing?,” Mr. Cohen simply responded “Yes,” and “That was the goal.”
Following her employment with the Trump campaign, Ms. Denson filed a lawsuit alleging harassment and discrimination as a campaign staffer. The Trump campaign responded by attempting to enforce the NDAs to stop her from engaging in speech — including in legal filings — regarding her working conditions on the campaign.
Today’s lawsuit seeks to put a stop to the Trump campaign’s efforts to silence its former workers and to make clear that public officials and candidates for office cannot use campaign NDAs to forever strip workers of their constitutional right to participate in public debate.
“Any candidate considering Trump campaign-style NDAs should be on notice that overreaching contracts of this type are unlawful, unenforceable, and send the message that you are willing to stifle public debate and hide information from voters — forever,” says Ballard Spahr First Amendment litigator, David Schulz.
More information about this litigation is available here.
The complaint can be found here.
Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government.
Bowles & Johnson PLLC is a New York City based law firm specializing in a modern approach to the practice of law in the areas of complex civil litigation, transactional law and corporate law.
Ballard Spahr LLP is a national firm with more than 650 lawyers in 15 offices in the United States, serving clients across industries in litigation, business and transactions, finance, intellectual property, and real estate.