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Sunday, October 02, 2016

Taking Bartnicki for a drive

The working assumption is that Donald Trump's old tax forms were released unlawfully, but that The Times was not involved in any leak. If so, the publication is protected by Bartnicki v. Vopper and Florida Star v. BJF as publication of truthful, lawfully obtained information on a matter of public significance. Even Justice Breyer, who concurred in Bartnicki but was hesitant to grant a broader constitutional immunity to the press, would agree that a candidate's tax returns are of "unusual public concern," outweighing any privacy interest Trump may have in these forms.

Of course, that assumes the source of the forms is not Marla Maples, Trump's former wife and co-signer on the returns.

Update: Ron Collins writes about the First Amendment protections The Times enjoys here, including comments from leading First Amendment attorneys and scholars, who uniformly agree that Trump has no chance of prevailing in a lawsuit, not only under Bartnicki, but also under The Pentagon Papers (which, while a prior-restraint case, reinforces the right to publish truthful, lawfully obtained information on a matter of public concern).

Posted by Howard Wasserman on October 2, 2016 at 05:21 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


None of the returns published were Federal returns. The Federal statute only pertains to Federal tax returns.

Posted by: anona | Oct 4, 2016 9:59:17 AM

I agree that both by reason of statutory text and Bartnicki that the Times has a very good chance of prevailing in any hypothetical prosecution or civil litigation. I'm puzzled only by the assertion that the Pentagon Papers case supports the Times. Justices White and Stewart were careful to note that the absence of statutory authority to enjoin publication did not foreclose post-publication prosecution under the Espionage Act. Add the three dissents and you have five votes that left open the power to prosecute after publication, a power then U.S. Attorney Whitney North Seymour refused to exercise, refusing Deputy A.G. Kleindeinst's insistence that he convene a grand jury to indict the Times.

Posted by: Michael R. Masinter, Nova Southeastern University College of Law | Oct 3, 2016 4:04:22 PM

I assume the lawsuit Trump is threatening would not involved federal tax law (which seem to impose criminal penalties, but do not provide for private suit or civil liability), but a general state privacy tort.

Posted by: Howard Wasserman | Oct 3, 2016 3:41:52 PM

FWIW, here's a map of the relevant SCOTUS doctrine. Includes Bartnicki, BJF and quite a few more media-centered cases https://www.courtlistener.com/visualizations/scotus-mapper/996/new-york-times-1964-to-bartnicki-2001/

Posted by: Colin Starger | Oct 3, 2016 9:46:34 AM

Good to know, but at present there's no possibility of prosecution. The relevant statute, 26 USC 7213(a)(3), makes a publisher liable for willfully publishing returns or return materials that were disclosed contrary to Title 26. Title 26 prohibits disclosure of return materials by government officials, or arguably by the return preparer (26 USC 7216, though I think the structure of the statute makes this a questionable basis for 7213(a)(3) liability). It does not prohibit release by any private party, whether or not that party had lawful access to the materials.

So, in short, unless it could be proved that the returns originated in the hands of a government official, no liability for NYT. And, even if NYT knew the source of the documents, it could plead the Fifth if subpoenaed for that information, as a 9th Circuit opinion from 1982. Tellingly, that is the only published referenced to 7213(a)(3).

Posted by: BDG | Oct 3, 2016 9:36:26 AM

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