Most folks are aware of the expression ”damming by faint praise.” Stephen K. Bannon went one step further by also making disparaging remarks about Mr. Trump, his family members and the company. Recently, a couple of my democrat-leaning friends opined that if what Mr. Bannon asserted was untrue, then Mr. Trump et. al. should sue him for defamation or, at least, for breach of a nondisclosure agreement which apparently was signed by everyone who worked for the campaign. “Hold on,” I responded. Public figures like politicians or policy makers which encompass the children, Ivanka and Donald, Jr., have a yeoman’s job under the law.

First of all, the bedrock of the Constitution is free speech. Prior restraint such as that threatened by Mr. Trump’s lawyers to stop the sale of Michael Wolff’s book, virtually never works, so sacrosanct are the decisions protecting the dissemination of ideas. While theoretically the President could sue for defamation and/or the breach of a nondisclosure agreement, both avenues are effectively blocked for the same reasons. Here  are the reasons.

The bar for defamation suits is pretty high, particularly for public figures. In the case of Mr. Trump, unflattering portrayals of him and the “treasonous” and “unpatriotic “epithets used for Donald Jr. and the “dumb as a brick” assertion about Ivanka are opinions. Defamation has to be rooted in an untrue fact.

As to any breach of a nondisclosure agreement, that also is a tough road to hoe even if Mr. Bannon signed a nondisclosure agreement. Such an agreement signed by a campaign aide for Mr., Trump was made public in a 2016 lawsuit (settled without explanation). It doesn’t prohibit former associates from writing or participating in books. Rhode Island’s Sean Spicer is working on one right now. The crux of these agreements is to preclude the sharing of confidential information or public disparagement. Clearly, Mr. Bannon’s comments are disparaging but it still is very difficult for a court to award damages for critical statements, again, because of the First Amendment not wanting to stifle information if a person was, indeed, a bad guy. Here, however, the real obstacle is that President Trump would have to show damages which are economic in nature. True, the president could try a Taylor Swift type of lawsuit to secure a dollar judgement to prove a point, but the legal costs are so high it probably wouldn’t sit well with him. The President’s major obstacle, therefore, is to show economic harm. Reputational harm can be compensable but Mr. Trump’s blizzard of tweets mitigates the case for reputational harm. How could a jury discern, for example, that Mr. Bannon harmed the reputation of the President as opposed to the tweets that he is a “genius” and the history of a year full of inaccurate facts in such tweets? Probably all the publication of this book did was to reinforce folks who can’t stand the President vs those who think he is a victim.

In any event, it is unfair to adopt a “put up or shut up” attitude based on the President’s failure to initiate legal proceedings. His chance of winning would be next to nil. In turn, a lawsuit punted out of the courthouse would again only reinforce his enemies’ disdain. He just can’t win on any level.

Arlene Violet is an attorney and former Rhode Island Attorney General.