Full Disclosure on Full Disclosure

Last week Arnold Schwarzenegger proclaimed his desire for greater openness in politics. "We need to throw open the doors and windows of government," he said. At the same time, however, Mr. Schwarzenegger has forced his campaign staff to sign strict confidentiality agreements. Under threat of termination, staff members must agree not to disclose information about "Arnold Schwarzenegger and his family, friends, associates and employees." The policy, first described in The Los Angeles Times, stipulates that Mr. Schwarzenegger can obtain an injunction against anyone trying to break it and a fine of $50,000 per violation.

A campaign aide later promised that if elected, Mr. Schwarzenegger would abandon the policy. In the meantime, his use of confidentiality agreements shows how, as celebrity candidates are becoming more common in politics, so too are the dubious mechanisms of celebrity image control.

Confidentiality agreements were once primarily used to protect commercial secrets. More recently, celebrities have adopted these contracts to protect themselves against checkbook journalism and embittered assistants. This isn't such a big deal. But increasingly, confidentiality agreements ban their signers from revealing information that furthers more meritorious public debate. The Catholic Church, for example, used them to silence victims of sexual abuse by priests, possibly allowing that crime to continue longer than it otherwise might have.

These agreements aren't made merely out of a concern for privacy. Confidentiality agreements have become a tool used by the rich and powerful against people who can't afford to turn down a job, as a way to stifle public discussion of embarrassing issues, and as a means of ensuring that a whistle-blower can't throw a wrench into the image-making machinery of a public figure.

They're also something I have firsthand experience with. After the death of John F. Kennedy Jr., I decided to write a book about him and his magazine, where I had been executive editor. Some of the staff members, including me, had signed confidentiality agreements. But could that prohibit me from writing about a man who was no longer alive?

It very possibly could have. When a well-known First Amendment lawyer told one magazine that the document was enforceable, my publisher hastily backed out of an agreement to publish the book. Fearing a legal morass, no other house would touch it.

Stunned, I paid a series of short visits to $500-an-hour lawyers I couldn't possibly afford. No one had ever litigated a case asking whether a confidentiality agreement survived the death of a celebrity journalist. For a sum in the mid-five figures, these lawyers would write a brief arguing my position -- but they could guarantee nothing.

That wasn't very promising. So I abandoned the legal route and spent a year writing without a contract, falling deeply into debt. When the manuscript was done, I managed to find a publisher certain that no one would sue over my laudatory book. But in a way, I was lucky: if the project had been less commercially viable, it would have been killed before a word was written.

However one regards the import of a memoir about John F. Kennedy Jr., the implications of my experience should be disturbing. What if Lyndon Johnson had required his staff to sign confidentiality agreements -- and after his death, Lady Bird chose to enforce them? Or if Senator Hillary Clinton ran for president and compelled the silence of her staff in perpetuity? These are not far-fetched possibilities. (Mrs. Clinton, for instance, required the ghostwriters of her autobiography to sign such documents.) How much valuable information would be lost to history? And how much more easily could political candidates project an image of themselves that covered up a less-flattering reality?

Arnold Schwarzenegger is running for governor of a state with 34 million people and the world's fifth-largest economy. Whether he is qualified is for the state's voters to decide. But they won't be able to judge his fitness for the job if he uses legal intimidation to suppress information about himself.

Confidentiality agreements allow Mr. Schwarzenegger to enter the public arena with very little of the risk that every other noncelebrity politician must live with: that the public will learn unfortunate truths about him. If a candidate isn't willing to take that chance, perhaps he shouldn't be running in the first place.

 

September 27, 2024