The New York Times has a widely shared piece this morning, disclosing that Donald Trump reported a nearly $916 million loss on his income taxes in 1995 – a financial drubbing that The Times said could have allowed him to wipe out any income-tax liability for 18 years.
Partisans on both sides are engaged in typical partisan hysteria, and some are wondering on social media: Is this sort of reporting legal?
The story included copies of Trump’s state tax returns from New York, New Jersey and Connecticut. Most people in my profession have salivated over the thought of gaining access to tax filings for those whose background we’re investigating. But personal tax returns naturally are confidential, and the Department of Revenue Services would promptly laugh at us if we asked to see them.
So was The Times on shaky legal ground in publishing Trump’s Connecticut Non-Resident Tax Return?
Laws are often open to interpretation, but the answer is probably not. Yes there are state laws that provide penalties for disclosing tax information; no, those laws probably don’t apply to The Times.
Section 12-15 of the Connecticut General Statutes makes it illegal to inspect or disclose “return information” – including the sort of information The Times reported. But the law’s prohibition is limited to current and former state employees and to others who have authorized access to the returns (such as contractors hired to help process or store returns). Those with unauthorized access – including The Times – aren’t covered by the law. (Connecticut’s law is substantially similar to the federal law on tax-return privacy.)
So if a state official provided the document, that individual may have broken 12-15, which carries a maximum penalty of a year in jail and a $1,000 fine. But that law doesn’t appear to apply to The Times or its reporters. (That said, it seems unlikely the document came directly from the Connecticut Department of Revenue Services; The Times indicates that all three tax returns arrived together in an anonymous package on Sept. 23.)
But if an anonymous tipster broke the law in leaking the records, is The Times still on the hook for publishing them? Again, probably not – although lawyers for Trump have threatened legal action. In 2001, the U.S. Supreme Court considered a case in which a Pennsylvania radio station broadcast a recording of an illegally intercepted cell phone call between union officials during a contentious contract negotiation. The union officials sued, but the court sided with the radio station, ruling that journalists cannot be held liable for publishing illegally obtained information related to legitimate matters of public concern, so long as the journalists did not participate in illegally obtaining the information.
“Privacy of communication is an important interest. However, in this suit, privacy concerns give way when balanced against the interest in publishing matters of public importance,” the court wrote in Bartnicki v. Vopper. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
The heated debate over the propriety and relevance of The Times’ story will likely go on. Just perhaps not in a court of law.