Home » News analysis » ‘Catch and kill,’ Trump’s trial, journalism ethics and the First Amendment

By John R. Vile, published on May 14, 2024

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Former President Donald Trump appears at Manhattan Criminal Court before his trial in New York, April 26, 2024. Mark Peterson/pool photo via AP)

The 2024 trial of former president Donald J. Trump for filing false statements about hush-money payments that were made on his behalf, presumably to keep embarrassing information from the public (and/or his family) during his first presidential campaign, elicited testimony from David Pecker, former publisher of the National Enquirer and a former friend of Trump. Pecker testified both about the Enquirer’s practice of paying for news stories, sometimes known as “checkbook journalism,” and about its policy of “catch and kill”—buying the rights to a story and then not publishing it. Attorney Keith Davidson further testified to helping to arrange hush-money payments to suppress negative information about numerous high-profile individuals. 

Pecker’s testimony about catch and kill

Pecker specifically testified that the Enquirer had paid $30,000 to a Trump Tower doorkeeper to suppress an apparently false story that Trump had fathered an illegitimate child (adding a penalty of $1 million if the doorkeeper disclosed the information without permission) and $150,000 to buy a story by former Playboy model Karen McDougal about an affair with Trump that it chose to suppress rather than to publish. Trump’s attorney Michael Cohen also paid $130,000 to porn actress Stephanie Clifford (aka Stormy Daniels) to suppress her story about an alleged sexual encounter that Trump continues to deny, but for which he appears to have reimbursed Cohen, possibly falsifying documents and violating campaign laws in the process.

During the trial, the Society of Professional Journalists issued a statement saying that the policies pursued by the National Enquirer in paying news sources and in buying rights with the design of suppressing stories violated its code of ethics. This does not, of course, mean that they are unconstitutional.

Potential precedents and First Amendment issues

Still, the disclosure that a news outlet bought what it believed to be a true story for purposes of suppression leads to questions related to the First Amendment.

Although this amendment, which has been applied to the states via the 14th Amendment, prohibits government from “abridging” either freedom of speech or press, it does not directly govern private, as opposed to government, actions. In ordinary circumstances, journalists would seem most willing to publish stories rather than seek to suppress them, but in the case at issue, the Enquirer was apparently more interested in facilitating Trump’s election than in disclosing negative information about him. The policies in which it engaged, however, arguably facilitate extortionists to make false claims and enable news organizations to suppress information that is arguably relevant to voters.

Journalists undoubtedly make decisions daily about which information is worthy or unworthy of publication. Responsible journalists would almost surely not print hearsay information without verifying it. They might further decide that information about the private lives, rather than the public policies, of political candidates is irrelevant. It would clearly be inappropriate for governments to interfere in such decisions. Moreover, businesses commonly conclude nondisclosure, and/or noncompete, agreements with employees or former employees who might have information regarding proprietary matters, and, as Trump and a number of other former politicians have found, the national government limits access to and dissemination of classified materials.

Arguments that might justify legislation 

Would it, however, be appropriate for Congress to adopt legislation designed to prevent “catch and kill” actions, which would appear both to facilitate extortion and to deny vital information to the public? 

Professor Kevin W. Saunders of Michigan State University has suggested at least some precedents for such legislation. In New York Times Co. v. Sullivan (1964), for example, the Court protected public debate about public officials—in this case an advertisement with some misstatements about the actions of Alabama police in suppressing civil rights demonstrations—even when they contained some errors of fact. It did so by requiring public officials to show that such speech was made with actual malice, that is, with either knowledge that the information was false or with reckless disregard as to its truth or falsity. It justified this standard as a way of facilitating public debate.

Similarly in Hustler Magazine v. Falwell (1988), the Court invalidated a conviction for a crude parody of pastor Jerry Falwell that he testified had led to extreme emotional distress on the basis that Falwell had not established actual malice. In Snyder v. Phelps (2011), it allowed vile demonstrators to attend the funeral of a slain Marine on the basis that their allegations that God was punishing the U.S. for tolerating homosexuality by allowing for the deaths of soldiers was a matter of public concern. 

There is arguably a difference between protecting speech that has been spoken or printed, and allowing catch and kill, but could governments decide to facilitate First Amendment freedoms by forbidding the purchase of news stories for the purpose of suppressing them? Could it further punish those who do so?

Professor Saunders suggests that there may, at the very least, be a basis for refusing to enforce such agreements. Pointing to the Supreme Court’s controversial decision in Shelley v. Kraemer (1948), which dealt with restrictive covenants that prohibited the sale of property to individuals of certain races, he notes that the Court decided that although governments had no right to mandate such restrictions, efforts to enforce them would amount to unconstitutional state action. Enforcement of a catch-and-kill agreement would arguably also amount to government action supporting First Amendment suppression.

Citing the case of Snepp v. United States (1980), which required that any profits an ex-CIA agent made from a book that violated his nondisclosure agreement would have to be returned to the agency, Saunders suggested that requiring the return of payments received for such NDAs might still be appropriate, although he was wary of legislation that would uphold other alleged damages.

In addition to the cases Saunders cites, it is possible that decisions like those in Richmond Newspapers, Inc. v. Virginia (1980) and Press-Enterprise Co. v. Superior Court of California (1986), which have recognized that the press and the public have the right to attend a public trial, might also be relevant to legislation designed to prevent the suppression of evidence.

Potential problems with such legislation

Professor Leonard M. Niehoff, of the University of Michigan Law School, has, however, raised some caveats. He observes, for example, that in upholding the right of students to refuse to salute the U.S. flag, the Supreme Court in West Virginia State Board of Education v. Barnette (1943) articulated a doctrine against “compelled speech,” which would almost surely also apply to news media that might have legitimate reasons to suppress stories. 

He further observes that the decision in Miami Herald Publishing Co. v. Tornillo (1974), which struck down a state law requiring newspapers to give equal space to those who sought to reply to newspaper criticisms, has recognized the appropriateness of editorial discretion. In combination, he believes that the First Amendment would protect “both the ‘catching’ and the ‘killing’ parts of catch and kill.” 

Niehoff acknowledges, however that nondisclosure and catch-and-kill agreements have been used to cover up incidents of sexual harassment by such figures as Harvey Weinstein and Larry Nasser and revealed by the #MeToo movement that are of interest to the public and that might have prevented harms had they been revealed earlier.

This suggests that both catch and kill and other nondisclosure agreements will remain a topic for continuing legislative consideration.

See also

Regulation of Political Campaigns

Donald Trump

Further reading

Rebecca Beyer. “ABA Journal: Catch and Kill: Can tabloids hide behind the First Amendment?” Oct. 1, 2019. 

Ronan Farrow, “The National Enquirer, A Trump Rumor, and Another Secret Payment to Buy Silence.” April 12, 2018. The New Yorker

Leonard M. Niehoff. “Catch and Kill: Does the First Amendment Protect Buying Speech to Bury it.” Communication Lawyer. Spring 2019, pp. 4-9. 

James D. Robenalt, “A Century before Trump’s term, a president paid a mistress to stay silent. April 2, 2023. The Washington Post. Kevin W. Saunders. “Non-Disclosure Agreements, Catch and Kill, and Political Speech.” University of Louisville Law Review (2020): 283-307. 


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