By Dan Spinelli
Dan Spinelli is a junior at the University of Pennsylvania studying English.
As if newspapers didn’t have a variety of other issues to worry about, the 2016 presidential election has brought the scourge of litigation threats, courtesy of Republican nominee Donald Trump. Before entering the political arena, Trump had repeatedly sued journalists (and threatened many more with lawsuits) over representations he deemed unfair. [1] While the fall of Gawker Media may suggest otherwise, two recent newspaper scoops about Trump have reiterated the limits of litigation against media organizations and the steep threshold for holding reporters accountable in court. The first is The New York Times’ uncovering of pages from Trump’s 1995 tax returns and the second is the Washington Post’s publication of a 2005 video of Trump describing women in ugly, lewd terms.
First, let’s address the elephant in the room: Gawker’s collapse came about due to litigation, but its cardinal sin, according to the Florida state court, was “invasion of privacy,” for the posting of a sex tape wrestler Hulk Hogan had hoped to keep far away from the public eye. [2] Donald Trump’s mere involvement in the issue would already make the standard of publication much more lenient, as private information pertaining to him is undoubtedly much more concerning to the public than anything involving a professional wrestler. The circumstances surrounding both cases, while widely challenged by Trump as unethical, would leave virtually no room open for litigation on Trump’s part.
Dan Spinelli is a junior at the University of Pennsylvania studying English.
As if newspapers didn’t have a variety of other issues to worry about, the 2016 presidential election has brought the scourge of litigation threats, courtesy of Republican nominee Donald Trump. Before entering the political arena, Trump had repeatedly sued journalists (and threatened many more with lawsuits) over representations he deemed unfair. [1] While the fall of Gawker Media may suggest otherwise, two recent newspaper scoops about Trump have reiterated the limits of litigation against media organizations and the steep threshold for holding reporters accountable in court. The first is The New York Times’ uncovering of pages from Trump’s 1995 tax returns and the second is the Washington Post’s publication of a 2005 video of Trump describing women in ugly, lewd terms.
First, let’s address the elephant in the room: Gawker’s collapse came about due to litigation, but its cardinal sin, according to the Florida state court, was “invasion of privacy,” for the posting of a sex tape wrestler Hulk Hogan had hoped to keep far away from the public eye. [2] Donald Trump’s mere involvement in the issue would already make the standard of publication much more lenient, as private information pertaining to him is undoubtedly much more concerning to the public than anything involving a professional wrestler. The circumstances surrounding both cases, while widely challenged by Trump as unethical, would leave virtually no room open for litigation on Trump’s part.
An anonymous tipper mailed Times reporter Susanne Craig pages from Trump's tax returns, which she later verified with Trump’s personal accountant and subjected to the scrutiny of tax experts hired by the Times. [3] A day later on CNN, Trump’s former campaign manager, Corey Lewandowski, urged the candidate to sue the newspaper “into oblivion” for publishing his tax returns. [4] Trump’s lawyer, Marc E. Kasowitz, also sent the paper a letter before it published its story: “An individual taxpayer’s income tax returns are confidential and statutorily protected from public disclosure.” [5]
Regardless of the way Trump’s returns were acquired by the anonymous source, the Times could hardly be legally disciplined for publishing them, thanks to the U.S. Supreme Court ruling in Bartnicki v. Vopper (2001), where Justice John Paul Stevens wrote for the majority that information that is in the public concern does not lose its First Amendment shield just because it was illegally acquired, or in the case of Trump’s taxes, possibly illegally acquired. [6]
“The Bartnicki case, both in its holding and reasoning, covers this case precisely,” attorney Lee Levine, who argued on the case’s winning side, told the Times. “If anything, the claim of First Amendment protection is stronger here because of Mr. Trump’s diminished reasonable expectation of privacy and because of the heightened newsworthiness of the information compared to what was before the court in Bartnicki.” [7]
However, Trump’s lawyer further pointed out that it goes against federal law to “willfully to disclose to any person…any [tax] return or return information.” The statute furthermore states that it is illegal to “willfully to offer any item of material value in exchange for any return or return information.” [8] The Times’ executive editor Dean Baquet came close to that line when he suggested that he would be willing “to go to jail” to publish Trump’s returns.
However, soliciting information of this nature, even in a more direct way than Baquet did, has been repeatedly upheld by the Supreme Court, in cases such as Smith v. Daily Mail Publishing Co (1979). And the little-known law Kasowitz cited probably does not apply to state tax returns, given that it was a federal law. Trump, the unabashed litigator that he is, may need to wait for a better case before filing suit against the “failing @nytimes,” as he calls it.
[1] “Business the Trump Way,” Fortune, accessed October 19, 2016, http://fortune.com/donald-trump-businessman/.
[2] Nick Madigan and Ravi Somaiya, “Hulk Hogan Awarded $115 Million in Privacy Suit Against Gawker,” The New York Times, March 18, 2016, http://www.nytimes.com/2016/03/19/business/media/gawker-hulk-hogan-verdict.html.
[3] Susanne Craig, “The Time I Found Donald Trump’s Tax Records in My Mailbox,” The New York Times, October 2, 2016, http://www.nytimes.com/2016/10/03/insider/the-time-i-found-donald-trumps-tax-records-in-my-mailbox.html.
[4] “CNN’s Corey Lewandowski Urges Trump To Sue NY Times ‘Into Oblivion’ Over Tax Report,” Media Matters for America, accessed October 19, 2016, https://www.mediamatters.org/embed/213485.
[5] Adam Liptak, “Donald Trump Would Have Trouble Winning a Suit Over The Times’s Tax Article,” The New York Times, October 4, 2016, http://www.nytimes.com/2016/10/05/us/politics/donald-trump-taxes-legal-case-new-york-times.html.
[6] “Bartnicki v. Vopper,” Oyez, accessed October 19, 2016, https://www.oyez.org/cases/2000/99-1687.
[7] Liptak, “Donald Trump Would Have Trouble Winning a Suit Over The Times’s Tax Article.”
[8] “26 U.S. Code § 7213 - Unauthorized Disclosure of Information,” LII / Legal Information Institute, accessed October 19, 2016, https://www.law.cornell.edu/uscode/text/26/7213.
Photo Credit: Flickr User Michael Vadon
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
Regardless of the way Trump’s returns were acquired by the anonymous source, the Times could hardly be legally disciplined for publishing them, thanks to the U.S. Supreme Court ruling in Bartnicki v. Vopper (2001), where Justice John Paul Stevens wrote for the majority that information that is in the public concern does not lose its First Amendment shield just because it was illegally acquired, or in the case of Trump’s taxes, possibly illegally acquired. [6]
“The Bartnicki case, both in its holding and reasoning, covers this case precisely,” attorney Lee Levine, who argued on the case’s winning side, told the Times. “If anything, the claim of First Amendment protection is stronger here because of Mr. Trump’s diminished reasonable expectation of privacy and because of the heightened newsworthiness of the information compared to what was before the court in Bartnicki.” [7]
However, Trump’s lawyer further pointed out that it goes against federal law to “willfully to disclose to any person…any [tax] return or return information.” The statute furthermore states that it is illegal to “willfully to offer any item of material value in exchange for any return or return information.” [8] The Times’ executive editor Dean Baquet came close to that line when he suggested that he would be willing “to go to jail” to publish Trump’s returns.
However, soliciting information of this nature, even in a more direct way than Baquet did, has been repeatedly upheld by the Supreme Court, in cases such as Smith v. Daily Mail Publishing Co (1979). And the little-known law Kasowitz cited probably does not apply to state tax returns, given that it was a federal law. Trump, the unabashed litigator that he is, may need to wait for a better case before filing suit against the “failing @nytimes,” as he calls it.
[1] “Business the Trump Way,” Fortune, accessed October 19, 2016, http://fortune.com/donald-trump-businessman/.
[2] Nick Madigan and Ravi Somaiya, “Hulk Hogan Awarded $115 Million in Privacy Suit Against Gawker,” The New York Times, March 18, 2016, http://www.nytimes.com/2016/03/19/business/media/gawker-hulk-hogan-verdict.html.
[3] Susanne Craig, “The Time I Found Donald Trump’s Tax Records in My Mailbox,” The New York Times, October 2, 2016, http://www.nytimes.com/2016/10/03/insider/the-time-i-found-donald-trumps-tax-records-in-my-mailbox.html.
[4] “CNN’s Corey Lewandowski Urges Trump To Sue NY Times ‘Into Oblivion’ Over Tax Report,” Media Matters for America, accessed October 19, 2016, https://www.mediamatters.org/embed/213485.
[5] Adam Liptak, “Donald Trump Would Have Trouble Winning a Suit Over The Times’s Tax Article,” The New York Times, October 4, 2016, http://www.nytimes.com/2016/10/05/us/politics/donald-trump-taxes-legal-case-new-york-times.html.
[6] “Bartnicki v. Vopper,” Oyez, accessed October 19, 2016, https://www.oyez.org/cases/2000/99-1687.
[7] Liptak, “Donald Trump Would Have Trouble Winning a Suit Over The Times’s Tax Article.”
[8] “26 U.S. Code § 7213 - Unauthorized Disclosure of Information,” LII / Legal Information Institute, accessed October 19, 2016, https://www.law.cornell.edu/uscode/text/26/7213.
Photo Credit: Flickr User Michael Vadon
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
