Porn Star Might Talk Despite Confidentiality Agreement

When Michael Cohen, President Donald Trump’s personal lawyer, acknowledged paying $130,000 of his own money to Stephanie Clifford (aka Stormy Daniels), the porn star who once claimed to have had an affair with Trump, Clifford’s lawyer announced that Cohen had breached their confidentiality agreement and therefore Clifford was now free to tell her story. Maybe. But simply acknowledging the existence of the agreement cannot be a breach. It is far from clear that Cohen’s statements about the agreement revealed enough to support the argument that he had breached.

But suppose we concede that Cohen had not breached. Must Clifford remain forever silent? As Michael Keaton said while playing Ray Kroc in the movie, The Founder, “contracts are like hearts… they’re made to be broken.” She is perfectly free to break her contract and tell her story. If she did so, what then? Cohen might sue. If he sued, he might win, and she would have to pay damages. It is far from clear what those damages might be. If the contract included a large penalty, that would almost certainly not be enforceable. If her story would harm the president, that would not be compensable, since Cohen insists the Trump had nothing to do with the contract.

Could Cohen get an injunction preventing publication? Doubtful. The content would have no direct effect on him (assuming he wasn’t in the room where it happened). Regarding any additional effects on, say, the president, if the Pentagon Papers could make it past prior restraint, then almost certainly the Porn Papers would as well.

Perhaps Clifford would have to return the $130,000. Big deal. I imagine she could sell her story for a lot more than that. Like Max Bialystock, she could sell investments in her story. Like Max’s little old ladies, little old liberals will be lining up for a piece of her “profits.” Even if the profits ended up being zero (perhaps because a court ruled that she must disgorge the profit that she had made on the sale), her investors would be content. They are not in it for the money.

So, if she really does have a story to tell, she should realize that the confidentiality agreement will not be a problem.

This post comes to us from Victor P. Goldberg, the Jerome L. Greene Professor of Transactional Law at Columbia Law School.