By Kevin M. Goldberg
One of the biggest stories of the fall campaign was the publication of three pages’ worth of Republican presidential candidate Donald Trump’s 1995 tax returns in The New York Times. Almost immediately, a secondary discussion began: whether the Times had broken any laws in publishing the first page of his New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return.
Team Trump certainly seemed to think so; his attorney sent the Times a letter prior to publication which threatened “prompt initiation of appropriate legal action.”
I disagree – and many others with significant First Amendment knowledge do as well. It is a longstanding and rock solid principle of First Amendment law that it is legal to publish truthful information which has been lawfully obtained.
The Times was involved in one of the earliest cases in which this maxim was applied in New York Times v. United States, more commonly referred to as “The Pentagon Papers Case.” The U.S. Supreme Court held in 1971 that the Times could not be prevented from publishing a 47-volume history of the United States’ role in Southeast Asia entitled “United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense.”
The Pentagon Papers had been commissioned by the Department of Defense. They were later copied by Daniel Ellsberg, an employee of the RAND Corporation (with help from his former co-worker Anthony Russo), who brought them to the Times. After the Times published a story on June 13, 1971, the government quickly moved to enjoin further installments. The case went to the U.S. Supreme Court which ruled just 17 days later that the Times (and others, including The Washington Post, which began publishing its own series on June 18, 1971) had a right to publish these classified documents.
Despite holding 5-4 in favor of the papers, the Supreme Court didn’t cite any reasons for its ruling other than saying that the government “carries a heavy burden of showing justification for the imposition of such a restraint.” Its holding left open the possibility that the Times could have been criminally punished after publication (it wasn’t).
Given its participation in the 1971 Pentagon papers case, the Times knew this as it prepared to publish Trump’s tax documents. But what about the possibility of punishment after publication? The Times probably knew it had little to fear here as well based on a more recent Supreme Court case called Bartnicki v. Vopper. That case, decided in 2001, has remarkably similar facts to this situation. In Bartnicki, a radio station had received a mystery audio tape during a period of contentious collective-bargaining negotiations between the teachers at a Pennsylvania high school and the local school board. The tape, which contained a conversation between the president of the teachers union and that union’s chief negotiator, was given to Vopper, a local radio show host. He played it on the air, after which it was broadcast by another station and reported on by local newspapers (the high level of interest stemmed from a statement made by the chief negotiator that “they're not gonna move for 3 percent, we're gonna have to go to their, their homes .... To blow off their front porches, we'll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news.”)
The parties agreed early on that the conversation had been illegally intercepted and recorded – and, further, that Vopper knew or at least had reason to know that the interception was unlawful. But that didn’t mean the radio station could be punished for broadcasting the tape. The Court relied heavily on three facts in its ruling:
1. The station played no part in the interception; it only found out about the interception later and, in fact, never learned who had intercepted the call.
2. The station’s access to the information on the tapes was obtained lawfully, even if the information itself was illegally intercepted.
3. The subject matter of the statements was a matter of public concern.
Of course, these facts surrounding the disclosure of the Trump tax returns is very similar. The Times played no part in their leak (and still, apparently doesn’t know who sent the returns to them in a plain manila envelope). The Times didn’t do anything illegal, even if state and federal laws governing the secrecy of tax returns may have been violated. Finally, these returns are a matter of public concern – perhaps the highest level of public concern given the election involved.
Rarely, in my mind, has prior precedent been so applicable. And I’m not the only one to feel this way. There is an excellent analysis of this situation on the Concurring Opinions blog written by attorney Ronald K.L. Collins in which he quotes 10 different First Amendment experts, including some people who are as close to “household names” as it gets with regard to First Amendment law like Floyd Abrams and Laurence Tribe. Adam Liptak of the Times cites the Concurring Opinions piece in his excellent analysis as well. All agree that the Times cannot be punished for publishing here. CNN Money also wrote about this, quoting two former executive directors of the Reporters Committee for Freedom of the Press, Jane Kirtley and Lucy Dalglish (also the 2011 recipient of NPF’s W.M. Kiplinger Distinguished Contributions to Journalism Award). Both cite Bartnicki v. Vopper in concluding the Times cannot be punished.
Despite the straightforward answer I’m presenting here, things are rarely this clear cut. As a result, you shouldn’t think this is the entirety of relevant law. And while nothing can serve as an adequate substitute for your attorney, here is a helpful summary from the Poynter Institute that can guide your initial thinking and risk assessment if you find yourself in a similar situation.
Kevin M. Goldberg, an attorney at Fletcher, Heald and Hildreth LLC, is chairman of the National Press Foundation.