February 14, 2017
“Did Publication of Donald Trump’s Tax Return Information Violate the Law?”
In September of 2016 during a visit to Harvard, The New York Times executive editor, Dean Baquet, said that he would risk jail time to publish Donald Trump’s tax returns. On October 1, 2016, he did just that when The New York Times published excerpts of Trump’s 1995 tax records which showed that he had claimed losses of $916 million that year. At that time there was speculation whether The New York Times violated federal law by doing so. The federal law in question, 26 U.S.C. § 7213(a)(3), states that “it shall be unlawful for any person to whom any return or return information…is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information.” There are corresponding New York and New Jersey laws as well (states where the tax return documents were from).
However if any such lawsuit were to be pursued by Trump, it seems that The New York Times would be protected by the First Amendment as long as they did not illegally participate in accessing Trump’s tax documents. According to the New York Times, they received the papers anonymously without any coercion. In Bartnicki v. Vopper, Justice Stevens wrote that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Privacy should give way when balanced against the public interest in publishing matters of public importance.
There are clear and obvious exceptions to the First Amendment right to free speech and they are there for a reason. But a presidential candidate’s tax returns would seem to meet the standard of “a matter of public concern” by a large degree. If the courts were to decide that The New York Times violated the law as outlined above, that either they had participated in illegal conduct simply by publishing the documents or that the matter was not one of public concern, it could lead to a slippery slope of free speech restrictions. This would be especially dangerous in a political climate like the one we find ourselves in now where we need the ability to speak out against “alternative facts” with truthful information.