Porn Stars, Nondisclosure Agreements And The First Amendment

Yale Law School professor Jack Balkin has this interesting post on the enforceability of the nondisclosure agreement that adult film actress Stormy Daniels signed in exchange for $130,000, paid on behalf of President Trump.  Balkin notes that such agreements are generally enforceable because people can voluntarily waive their First Amendment rights.  But he argues that such agreements may, under certain circumstances, violate public policy.  Money quote:

Daniels’ strongest argument is a public policy argument within contract law– courts should refuse to enforce some (but not all) nondisclosure agreements because they are against public policy.  The public policy in this case is the public’s right to know about the private life of the President of the United States before he became President. In the alternative, there might be a public policy justifying a much narrower right of disclosure–namely, the right of the public to know whether the President and his allies violated campaign finance rules in order to keep Daniels quiet. There are plausible arguments for both of these positions, but they sound more in contract law than in First Amendment doctrine.