Stormy Daniels In Addition To Cambridge Analytica

Mark Graber has argued that the First Amendment should protect Stormy Daniels' violation of her nondisclosure understanding alongside Donald Trump. I dubiety that this is correct-- for reasons described below, I intend her best declaration sounds inwards contract law. But fifty-fifty if Mark is correct,  I desire to fighting inwards this postal service that at that spot are really practiced reasons why the First Amendment to a greater extent than oftentimes than non does non forbid enforcement of contacts that preclude the disclosure of sensitive personal information. Most companies' privacy policies depend on this proposition. These considerations are peculiarly of import inwards the digital age. We should non role First Amendment doctrine to enter hard if non impossible for governments to implement reasonable privacy protections that volition preclude the disclosure in addition to manipulation of sensitive personal information.

Suppose a really rich in addition to powerful company--let's telephone vociferation upward it Dun in addition to Bradstreet v. Greenmoss Builders, inwards which the Supreme Court held that the constitutional privileges of New York Times v. Sullivan in addition to its progeny did non apply to matters of purely individual job well-nigh individual figures.

Third, every bit I bring simply argued, Facebook is an information fiduciary, in addition to anyone who receives its end-users' personal information through contractual understanding should every bit good hold upward treated every bit an information fiduciary. (The fiduciary duties, inwards other words, should run alongside the data.) At the really least, governments could impose such a requirement inwards privacy regulations  consistent alongside the First Amendment. By contrast, Stormy Daniels lacks a fiduciary human relationship to Donald Trump. She is an ex-lover, but ex-lovers in addition to friends are non fiduciaries (although inwards to a greater extent than or less common-law jurisdictions she mightiness conceivably hold upward liable for a related tort, breach of confidence).

So the 2 cases are distinguishable on several grounds. Even so, I don't think, every bit Mark does, that Stormy Daniels' best declaration is the First Amendment rather than contract law. I intend that at that spot are really practiced ground to keep the full general regulation that people tin contract away their right to beak consistent alongside the First Amendment. If that were non so, reporters mightiness non hold upward able to credibly hope confidentiality to sources (This is the plain of study of Cohen v. Cowles Media Company). Nor, every bit noted above, would individual companies hold upward able to enforce privacy policies. 

Rather, Daniels' strongest declaration is a populace policy declaration inside contract law-- courts should spend upward to enforce to a greater extent than or less (but non all) nondisclosure agreements because they are against populace policy.  The populace policy inwards this example is the public's right to know well-nigh the individual life of the President of the United States of America earlier he became President. In the alternative, at that spot mightiness hold upward a populace policy justifying a much narrower right of disclosure--namely, the right of the populace to know whether the President in addition to his allies violated motility finance rules inwards lodge to conk along Daniels quiet. There are plausible arguments for both of these positions, but they audio to a greater extent than inwards contract police pull than inwards First Amendment doctrine.