Nondisclosure agreements intended to keep secret information that could harm one or both parties’ reputations have proliferated over the past decade. Many of them have been breached, some quite famously. Does a third party who assists a contracting party in breaching such an agreement — a member of the press or a family member, for example — risk liability for tortious interference with performance of a contract? This article asserts that the answer is no in most instances, in part because of limitations inherent in the tort and in part because such liability would violate the defendant's First Amendment rights. The answer proves more difficult in cases where the third party acted wrongfully or the information is purely private and not of public concern.

Investigative reporters and the #metoo movement exposed the widespread use of nondisclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by contrast, often decide to forgo enforcement when doing so would increase the very harm the contract sought to limit, and when victory would bring limited relief. It is unsurprising, then, that RNDAs are often under enforced, or enforced sporadically and with limited success. In such instances, the RNDAs have failed to meet their goals while they worsened the reputational harm of the embarrassing acts themselves. This article describes RNDAs’ instances of failure and considers the consequences of these failures for parties to the contracts, the legal profession, and those who are troubled by their extensive use. It also begins an inquiry into the reasons behind the failures and their significance for understanding secrecy, disclosure, and contract law. These reasons include the fact that secrecy is always vulnerable to defection; information’s intangibility allows it to move freely, costlessly, and immediately; RNDAs purport to resolve a dispute fraught with hurt, emotion, and trauma through a one-shot financial transaction; and reputation is ethereal, susceptible to the vicissitudes of public opinion, and shaped by fact and rumor alike. RNDAs’ vulnerability to breach constitutes an alternative means to hold their abusive use in check beyond the well-worn paths of traditional legal reforms established through legislation and common law reform. Breach appears to be the best means not only to help victims but to discourage the use of RNDAs to silence victims, as well as to force attorneys and their clients to reconsider how they use contract law to protect secrets.

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Donald Trump ignored numerous governance norms in his one term as U.S. President, especially those that prescribe disclosure of official and personal financial information. His brief period of illness from COVID-19, which he broadcast to the world via his Twitter account, revealed the complexity of Trump’s relationship to the concept and norms of transparency that presume information’s necessity for a functional and accountable state. At the same time that Trump offered little in the way of coherent and authoritative information about his health, he also provided an enormous amount of seemingly “inside” and direct accounts of the progress of his illness—indeed, much more than tradition and law appeared to require. This incident epitomized both Trump’s distinct, populist approach to transparency and transparency’s limitations as a concept of democratic governance.

Transparency has become a preeminent administrative norm with unimpeachable status as a pillar of democracy. But the rise of right-wing populism, reminiscent of older forms of militaristic authoritarianism, threatens transparency’s standing. Recently elected governments in Europe and Latin and North America have represented a counter-movement away from liberal-democratic institutions that promote the visibility and popular accountability that transparency promises. Contemporary populist movements have not, however, entirely rejected it as an ideal. The populist rebuke of power inequities and its advocacy for popular sovereignty implicitly and sometimes explicitly include a demand for a more visible, accessible state. Populists’ seemingly hypocritical embrace of transparency in the face of their resistance to open government mandates demonstrates transparency’s important historical connections and conceptual affiliations with populism, in the process illuminating its complicated politics and the difficulty of ensuring legal compliance in a period of renewed populism. Drawing on transparency and populism’s historical development and using Donald Trump’s one-term presidency as a case study, this article reveals the relationship between an administrative norm and a political movement and style, and what democracy’s current state portends for transparency’s future.

WikiLeaks serves as a neutral entity that will save the public and free the world through information. He predicted that corrupt political orders would fall as the threat of exposure forces the collapse of their conspiratorial communication networks. Early in his time as a public intellectual, Assange proclaimed transparency's power in two distinct tones. During the first bloom of his celebrity, Assange would frequently portray WikiLeaks as a conventional, journalistic endeavour to make major public institutions, especially governments, more visible to the public. Liberals have never fully embraced Assange's occasional claims that WikiLeaks served as an agent of liberal reform. The more tech-friendly elements of the transparency movement, which view information technology as the best means to correct the public bureaucratic tendency to hoard information, were at best ambivalent about WikiLeaks's technological innovations. Mainstream transparency advocates have proven even more circumspect.

In his book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump, Stanley Fish neatly reverses the polarity of rights-based claims that the public enjoys, under the First Amendment’s free speech and press rights, a right to government information. Transparency and free speech ideals are indeed related, he concedes, because they share a political vision and conceptual grounding in the notion that robust conceptions of free speech carry a commitment to increase the flow of information. But this is not a good thing, Fish argues—rather, the relationship between the two merely compounds a fundamental error and creates bad consequences. This brief review essay applauds Fish’s critique of both understandings of the First Amendment and in the process offers friendly amendments regarding the distinction between public and private speech, the statutory rights to information available under the federal Freedom of Information Act and other laws, and how the Trump presidency confounded everyone’s understanding of what transparency might mean.

This essay updates (to early 2019) earlier work on the WikiLeaks story in order to consider what more recent developments reveal about the theoretical promise that Assange articulated at the time of the website’s emergence. Assange has characterized secrecy as both a form and symptom of corruption, and ultimately as the foundation of a “conspiracy” of governance that states like the U.S. inflict on their subjects and the world. He advocates a non-political, vigilante form of transparency in which WikiLeaks serves as a neutral entity that will save the public and free the world with information. He predicted that corrupt political orders would fall as the threat of exposure forces the collapse of their conspiratorial communication networks. But WikiLeaks has failed not only to save the world but to save itself from politics — and in the process has itself become a bit player in the larger geo-political drama that it had hoped to disrupt. Assange’s theory of information disclosure, as well as his assumptions about the state and governing institutions, have proven far too descriptively and normatively simple. More prominent, less radical theories of transparency should take note of these failures to the extent that they share many of his assumptions.

An email arrives, promising inside information about the perfidious forces that secretly rule the nation. A Twitter feed from a prominent insider at an establishment think-tank announces the latest disclosure about the president’s secret role in the Russian conspiracy to manipulate the election that elevated him with the blast of toy cannon. Meanwhile, the President’s tweets serve to annoy, distract, humor, or comfort those who see them, and they above all announce some truth about his presidency.

GovernanceVolume 30, Issue 2 p. 173-175 Commentary Transparency in Trump's America Mark Fenster, Mark Fenster University of FloridaSearch for more papers by this author Mark Fenster, Mark Fenster University of FloridaSearch for more papers by this author First published: 07 February 2017 https://doi.org/10.1111/gove.12272Citations: 6Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Citing Literature Volume30, Issue2April 2017Pages 173-175 RelatedInformation

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Abstract:This article argues that because information leaks from different actors and agencies will continue regardless of state attempts to prevent or contain such leaks, the government should reorient its attitude to pursue ethical and moral decisions by default in light of its awareness of inevitable information disclosure.

Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing an appellate decision, legislative enactment, or academic debate, the legal academic must travel back in time to set matters straight, redeeming the past to make certain that the future avoids its confused and unfortunate fate. Intellectual historians trail behind the legal academy’s heavy-breathing and magnificent use of the past, cleaning up its waste by providing context, complicating narratives, and replacing bright trumpet horns with muted tones, vivid colors with shades of gray. Well after the parade has dispersed and marchers have moved on, and often before the next “Big Issue” causes the celebrants to line back up, intellectual history can bring complexity and context back in to the frame. I illustrate this dynamic first by describing the use of legal realism in Brian Tamanaha’s recent monograph on what he describes as the formalist-realist divide in legal theories about judging and about legal doctrine, and in the debate over that divide. In Part II, I describe a relatively minor figure in the pantheon of legal realists (as that pantheon currently exists), Thurman Arnold, and his realist critique of the criminal law and procedure.