Laurence H. Tribe is university professor and professor of constitutional law at Harvard Law School. He argued and won Richmond Newspapers v. Virginia before the Supreme Court. Ron Fein is the legal director of Free Speech for People.
The adult-film actress Stormy Daniels has been dragged into secret arbitration over allegations that she has violated a hush agreement to keep quiet about her affair with Donald Trump. In response, Daniels (whose real name is Stephanie Clifford) has filed a lawsuit in California, asking the court to toss out the contract because Trump never signed it. That case is still in its early stages. But even if Daniels is forced to defend herself before a private arbitrator rather than a judge, the arbitration proceeding should not be secret. It should be open to the public.
Our constitutional tradition frowns upon secret trials. In Richmond Newspapers Inc. v. Virginia , the Supreme Court recognized a First Amendment right of public access (including press) to criminal trials. Since then, lower federal courts and state supreme courts (including the California Supreme Court) have confirmed that the same public right of access also applies to civil trials.
Of course, private arbitration is not the courtroom; there is no general right of access to arbitration proceedings. Unlike in court trials, in arbitration hearings, the physical evidence, the witness testimony, the legal arguments and sometimes even the outcome are confidential. And certainly not all arbitration hearings should be open to the public. Indeed, while there are some thoughtful scholarly arguments for applying constitutional protections to court-enforced arbitration, the only judicial precedent for requiring public access to arbitrations addresses narrow circumstances that do not apply here.
But the unique circumstances of this case argue that any arbitration between President Trump and Daniels should be conducted in the sunlight. This is no ordinary arbitration. This is the president of the United States trying to compel a U.S. citizen to submit to a private proceeding to force her silence on a matter of significant public interest. The arbitrator has already issued a legally questionable temporary restraining order purportedly to silence Daniels, and according to court filings, Trump (or his lawyer, Michael Cohen, who apparently created a bespoke LLC solely for the hush agreement) may ask the arbitrator to order Daniels to pay up to $20 million in damages for talking about the affair.
To be clear, the public’s interest does not extend equally to all aspects of this matter. Trump’s dalliance with Daniels that began in 2006 was a consensual affair between private citizens. And while we may learn more from Daniels’s upcoming “60 Minutes” interview, the basic story of the affair itself is already public knowledge.
But the coverup is of great public interest, and relevant evidence could emerge in an arbitration proceeding. Daniels would probably present detailed testimony and evidence about the circumstances of the rushed October 2016 negotiations that led to the curious deal between her, Trump and Cohen. The circumstances of this agreement and payment are of significant public interest because it appears the payment constituted an illegal contribution to Trump’s presidential campaign.
Furthermore, Daniels has alleged that she has been the victim of intimidation and other illegal activity from Trump or his associates — and that some of the incidents involved in the case occurred after he took office. Given the possibility that the president, his company, his campaign or his White House staff may have committed crimes — such as extortion or conspiracy to violate federal campaign finance law — the public interest could scarcely be higher.
In Richmond Newspapers , the justices emphasized that open trials assure the public that justice is administered fairly. Unlike England’s Star Chamber of the 16th and 17th centuries — a secret court often used by the king to punish opponents — our courts are open and the public may hold government authority accountable when it brings the force of law to bear against individuals.
We are accustomed to thinking of censorship by government officials through official actions and official channels. But Trump’s intermingling of private business and public service is not limited to hosting foreign diplomats at his hotels and golf resorts. Early in 2017, White House staff were asked to sign nondisclosure agreements promising that they would not share any information they learn in the White House, even long after Trump is gone. And in 2018, the same lawyer now representing Trump against Daniels sent a cease-and-desist letter trying to prevent the publication of a book that criticized the president. Since the president tends to treat the U.S. government as an extension of the Trump Organization, his efforts at censorship sometimes take forms more typically seen in business than in public service.
If the president is going to drag Daniels before a private arbitrator to punish her for speaking out, he should do so in the light of day, not behind closed doors.