New York Times

Trump Would Have Trouble Winning a Suit Over a Tax Article, Experts Say

October 5, 2016

by Adam Liptak

WASHINGTON — More than 20 years ago, a surreptitious recording of a cellphone conversation arrived at a Pennsylvania radio station. A federal law made it illegal to broadcast such recordings, but the radio station aired it anyway.

The case reached the United States Supreme Court, which in 2001 ruled for the radio station. Legal experts say the decision, Bartnicki v. Vopper, powerfully undermines Donald J. Trump’s claim that The New York Times can be held liable for publishing parts of his tax returns.

Any effort to punish “publication of truthful information of public concern,” Justice John Paul Stevens wrote for the majority, “implicates the core purposes of the First Amendment.”

That is so even if someone broke the law in providing information to a news organization, he wrote. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

Not long before The Times posted its article on Mr. Trump’s taxes, one of his lawyers, Marc E. Kasowitz, sent a letter to The Times threatening legal action.

Mr. Kasowitz said that “an individual taxpayer’s income tax returns are confidential and statutorily protected from public disclosure.”

That is true so far as it goes. In an email a few hours later, but before publication, Mr. Kasowitz wrote that “any unauthorized disclosure, which publication by The New York Times would be, is illegal.” He cited a federal law that makes it a crime “willfully to print or publish” federal tax return information. It was the only law he cited.

Here, though, things grow more complicated. The Times published parts of state tax returns only, from New York, New Jersey and Connecticut. The federal law Mr. Kasowitz cited does not appear to apply to state returns. In any event, the federal law is a criminal one that does not appear to authorize private civil suits.

Mr. Kasowitz did not respond to a request for comment, and it may be that there is a statute or legal theory in one of the four jurisdictions in question that allows the lawsuit he described.

Even if that is so, the First Amendment poses a very high barrier to any such litigation.

That was the consistent opinion of 11 First Amendment experts consulted by Ronald K. L. Collins for the Concurring Opinions law blog.

Here are two representative opinions:

“There is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for president,” saidBurt Neuborne, a law professor at New York University. “That’s why we have a First Amendment.”

“This is open-and-shut,” said Geoffrey Stone, a law professor at the University of Chicago.

This view was not limited to people who might be expected to be friendly to The Times. Consider Gabriel Schoenfeld, who has called for the prosecution of The Times for publishing information about a program of warrantless wiretapping.

“I strongly hope,” he said in an interview, “that Donald Trump sues The New York Times for publishing his tax returns, just as I strongly hope that in the two debates to come, Donald Trump once again attacks Rosie O’Donnell and utters more gibberish. Any such lawsuit — which in all likelihood would be shot down by the courts on First Amendment grounds — is likely to help further unravel the candidacy of a man who is, among other disqualifying flaws, an enemy of a free press.”

The decision that first springs to mind in discussions of what the First Amendment has to say about the publication of confidential or classified information is New York Times Co. v. United States, usually called the Pentagon Papers case. But it does not answer the central question in the current dispute.

True, the decision refused to block publication by The Times and The Washington Post of the classified history of the Vietnam War, establishing an all-but-absolute prohibition against prior restraint on publication. But two of the justices in the 6-to-3 majority indicated that they did not rule out after-the-fact prosecution of the newspapers under espionage laws.

The Bartnicki decision, concerning the cellphone call, largely answered the question left open in the Pentagon Papers case.

Lee Levine, who argued on the winning side in Bartnicki, said the decision would doom any lawsuit from Mr. Trump.

“The Bartnicki case, both in its holding and reasoning, covers this case precisely,” said Mr. Levine, who has on occasion represented The Times. “If anything, the claim of First Amendment protection is stronger here because of Mr. Trump’s diminished reasonable expectation of privacy and because of the heightened newsworthiness of the information compared to what was before the court in Bartnicki.”

(As a lawyer in The New York Times Company’s legal department, I helped Mr. Levine prepare for the Bartnicki argument and helped draft a friend-of-the-court brief supporting his side in the case.)

The tape at issue in that case concerned a labor negotiation. A union official said a school board’s intransigence could require a violent response. “We’re gonna have to go to their homes,” the official said of board members, and “blow off their front porches.”

The recording, like Mr. Trump’s tax returns, arrived over the transom: It was delivered to an official of a local taxpayers’ association that opposed the union’s wage demands. As with the tax returns, the recording’s source was unknown.

The association official passed it along to the radio station.

The people whose call was recorded sued under a federal law that banned such disclosures. That law’s structure is very similar to the one invoked by Mr. Trump.

Even though the source had obtained and disclosed the information unlawfully, Justice Stevens wrote, the radio station was free to broadcast it because it was “a matter of public concern.”

“If the statements about the labor negotiations had been made in a public arena — during a bargaining session, for example — they would have been newsworthy.”

Some kinds of information — “disclosures of trade secrets or domestic gossip or other information of purely private concern” — may not warrant First Amendment protection, he wrote. However, the tax returns of a presidential candidate whose campaign is based in large part on his business acumen would seem to be well on the other side of the line.

Another part of the statute Mr. Trump’s lawyer cited makes it a crime to solicit federal tax return information, defining solicitation to mean “willfully to offer any item of material value in exchange for any return or return information.” Some commentators have argued that a statement by the executive editor of The Times, Dean Baquet, may have amounted to such solicitation.

In September, before the tax documents arrived at The Times, Mr. Baquet participated in a public discussion at Harvard with Bob Woodward of The Washington Post and Laura Poitras, a documentary filmmaker.

Mr. Baquet said he would fight hard to publish Mr. Trump’s taxes if The Times obtained them, were the paper’s lawyers to object. (They did not.) Mr. Baquet added that he would, if need be, make the case in court that publishing the documents was valuable and lawful. He suggested but did not say that he would be willing to go to jail over the matter.

This is not the sort of solicitation contemplated by the statute. Even a more direct request for information — of the sort journalists make all day — is not unlawful conduct, courts have said.

In a concurring opinion in the Bartnicki case, Justice Stephen G. Breyer, not always a friend of the news media, said that it mattered that the union officials were public figures, if only to a limited extent. “They thereby subjected themselves to somewhat greater public scrutiny,” he wrote, “and had a lesser interest in privacy than an individual engaged in purely private affairs.”

A presidential candidate, it would follow, invites much more searching public scrutiny.