Elections

The NYT Probably Didn’t Break The Law Dropping Trump’s Tax Returns

REUTERS/Jonathan Ernst

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Kevin Daley Supreme Court correspondent
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The New York Times probably did not break the law by releasing portions of Republican presidential nominee Donald Trump’s tax returns, despite arguments to the contrary.

Though the Times is likely in the clear, it’s possible someone broke the law along the way.

The Times itself is on strong legal ground. At the level of generality, any law that preemptively restricts speech, known as a prior restraint, is considered presumptively unconstitutional by the courts. Therefore, any law forbidding the publication of factual statements or documents, like a tax return, is almost certainly unconstitutional. It is difficult to see how exceptions to this rule, as in instances of national security, are applicable here.

The U.S. Supreme Court has also spoken definitively in connection to this issue. In Bartnicki v. Vopper, the Court found that the First Amendment protects the disclosure of illegally intercepted communications. Writing for a six-justice majority, Justice John Paul Stevens reasoned that matters of general public interest prevail when balanced against a privacy interest. Stevens writes:

In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: “The right of privacy does not prohibit any publication of matter which is of public or general interest.

How The New York Times obtained the tax return that anchors its reporting could present legal problems, though probably none that implicate the Times.

Two states with which the returns were filed, New York and New Jersey, each have laws forbidding the divulgence of details and particulars on a tax return. It would be difficult to apply such laws against the Times, but the source who leaked or compromised the tax return is in a precarious position legally. (RELATED: 7th Circuit To Mike Pence: You’re A Racist)

The Times says the returns were mailed to them with a return address at Trump Tower in Manhattan.

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