On Saturday night, the New York Times published a portion of Donald Trump’s 1995 income tax returns, highlighting a massive deduction that may have allowed Trump to avoid paying federal income taxes for 18 years. On Sunday morning, the Washington Post’s Callum Borchers wrote an article claiming that the Times had violated federal law by publishing Trump’s returns and risks legal punishment. Borchers is completely incorrect under both the letter of the law and the First Amendment. The Times broke no law by publishing the returns. And even if it had, the First Amendment would obviously protect it from any penalty.
Borchers alleges that the Times violated a federal statute that forbids the publication of “any [tax] return or return information” in “a manner unauthorized” by law. What Borchers does not understand is that this statute applies only to documents submitted to the federal government. (By its own terms, the statute pertains to “any return or return information (as defined in section 6103(b))”; that section defines “return” as tax information “filed with the Secretary [of the Treasury]”—i.e., federal tax data.)* The Times published portions of tax returns from state filings in New York, New Jersey, and Connecticut. Federal law simply doesn’t punish the disclosure of state tax documents. For that matter, neither does relevant state law: New York, New Jersey, and Connecticut do not have any parallel statutes governing unauthorized publication of tax returns. The Times disclosures, in other words, were perfectly legal.
But just imagine for a moment that these states did criminalize the publication of unlawfully obtained tax returns. There is absolutely no way under the Constitution that the government could punish the Times for breaking these theoretical laws. The First Amendment vigorously protects speech on a matter of public concern; indeed, First Amendment protections are never more robust than when they pertain to speech about a candidate for elective office. Yes, the Times likely printed returns that were illegally obtained. But under the First Amendment, that doesn’t matter: The Constitution also protects the disclosure of illegally intercepted speech on a matter of public concern. If the government attempted to prosecute the Times for its Trump story, any judge with cursory knowledge of the First Amendment would laugh prosecutors out of court.
Borchers’ story, then, is plainly wrong on several levels. But it is also a nice litmus test to discern how you actually feel about corporate speech. Conservatives who routinely defend Citizens United are already licking their chops over the prospect that the Times could be punished for breaking the law. But if you support Citizens United, as I do, then you should immediately recognize that corporations like the Times have extensive free speech rights, and that the notion of prosecuting the Times over this story is absurd—even if a federal statute did punish its disclosures. There is a higher law than the U.S. tax code. It is called the First Amendment. And any defender of free speech must acknowledge that the Times had an absolute right to publish every word of its bombshell story, tax returns and all.
Thanks to Anthony Michael Kreis, professor of law at Chicago-Kent College of Law, for providing information regarding state and federal tax law.
*Update, Oct. 2, 2016: This post has been updated to explain in greater detail why the statute cited by Borchers pertains exclusively to federal tax information.