Henry Holt is a division of Macmillan (owners of Tor Books, who publish my novels); they’re the folks who published Michael Wolff’s bestselling Fire and Fury, which has so thoroughly embarrassed Donald Trump that the President of the United States has threatened to sue them.
In response, Macmillan CEO John Sargent emailed all the Macmillan writers and staff a letter, vowing not to cave in to bullying and featuring such memorable passages as:
There is no ambiguity here. This is an underlying principle of our democracy. We cannot stand silent. We will not allow any president to achieve by intimidation what our Constitution precludes him or her from achieving in court. We need to respond strongly for Michael Wolff and his book, but also for all authors and all their books, now and in the future. And as citizens we must demand that President Trump understand and abide by the First Amendment of our Constitution.
But as eloquent as Sargent is, he takes a backseat to Macmillan’s outside counsel, Elizabeth A McNamara, of Davis Wright Tremaine LLP, whose reply to Trump lawyer Charles Harder (yes, the Charles Harder who shut down Gawker and failed to kill Techdirt for pointing out that email wasn’t invented by Shiva Ayyadurai) is a fucking work of art.
To briefly address a few of the additional substantive claims identified in your letter, we note that you understandably cite to New York as the governing law, yet we were surprised to see that President Trump plans on asserting a claim for “false light invasion of privacy.” As you are no doubt aware, New York does not recognize such a cause of action. Messenger ex rel. Messenger v. Gruner Jahr Printing and Pub., 94 436, 448 (2000); Hurwitz v. US, 884 F.2d 684, 685 (2d Cir. 1989). Not only is this claim meritless; it is non-existent. In any event, it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office…
… Next, your letter focuses on alleged claims for tortious interference with contractual relations and inducement of breach of contract. Yet, as your client will no doubt appreciate, timing is everything when it comes to these claims. And there is no dispute that Mr. Bannon had already communicated with Mr. Wolff freely and voluntarily well before the “notice” you have provided. Mr. Bannon plainly needed no cajoling or inducement to speak candidly with Mr. Wolff. And an after-the-fact lawyer’s letter putting my clients “on notice” does not put the genie back in the bottle, much less subject Henry Holt or Mr. Wolff to liability. The law treats sources like Mr. Bannon as adults, and it is Mr. Bannon’s responsibility — not Henry Holt’s or Mr. Wolff’s — to honor any contractual obligations. Indeed, your attempt to use private contracts to act as a blanket restriction on members of the government speaking to the press is a perversion of contract law and a gross violation of the First Amendment. No court would support such an attempt to silence public servants and the press.
(via Techdirt)