The New York Times Did Not Break The Law

The New York Times recently published Donald Trump’s tax returns from 1995, raising questions about whether The Gray Lady broke the law by doing so.  Generally speaking, tax returns are confidential and it is illegal for a person to publish them unless “authorized by law.” So, did the New York Times break the law?

The short answer to the question is that the First Amendment protects what the New York Times did, for two principal reasons: (1) The NYT did not engage in any illegal activity in the acquisition of the tax returns, i.e., it was a passive recipient of the returns. (They were anonymously dropped in the mailbox of a NYT reporter); and (2) Donald Trump’s returns are undeniable an issue of public significance.”

The United States Supreme Court has held that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Bartnicki v. Vopper, 532 U.S. 514, 528 (2000) (citing cases).  It has also “repeatedly held that ‘if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order….'”  Id.

Thus, in the famous Pentagon Papers case (New York Times v. United States), the Supreme Court upheld the right of the New York Times under the First Amendment to publish papers that it knew were stolen from the Department of Defense, because of the great public significance of those papers. [UPDATE 10/5/16: The Pentagon Papers is actually a “prior restraint” case, not a case about whether the government could punish the newspaper after-the-fact, criminally or civilly, for publishing classified information.  But the case is frequently cited for the proposition that the First Amendment forbids such punishment.]

Bottom line: While it is certainly reasonable to debate the publication of Trump’s tax returns as a matter of journalistic ethics, the legality of the publication is hardly in doubt.

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