On October 1, 2016, the New York Times published a report that showed Donald Trump’s leaked 1995 state tax returns. The returns showed that he declared a loss of $916 million, which could have let him avoid paying any federal income tax for a long time. After all, even if he made $50 million per year, that loss would still offset any income at that pace for 18 years. Nobody, including Trump’s campaign, is denying the veracity of the documents. What the Trump campaign is saying is that the tax documents are the result of criminal activity and should never have been released.
In the letter, he states that producing the tax document was illegal, saying, “The only news here is that the more than 20-year old alleged tax document was illegally obtained…”
A separate letter sent to the Times threatened “prompt initiation of appropriate legal action.”
Trump has previously said that if he is elected president, he would open up libel laws to allow easier lawsuits against the media
Donald Trump is no stranger to litigation. His first libel lawsuit was in 1984 against the Chicago Tribune and Paul Gapp, its architecture critic. In the lawsuit, Trump complained that Gapp’s criticism of a plan for a 150-story skyscraper caused the derailment of the construction of the building. Trump lost this lawsuit because the critique of the proposed structure was an opinion, and thus protected by the First Amendment and not subject to libel laws.
Other libel lawsuits followed. 2006 saw legal action against Timothy O’Brien for writing in his book, TrumpNation: The Art of Being The Donald, that Trump was only worth $250 million, rather than the billions Trump claimed. The case was dismissed by a New Jersey court because Donald lacked any evidence of his true net worth and that he admitted that his projected worth was mainly based on his own feelings. In 2014, Trump sued a former student of Trump University for disparaging the school on social media. The courts ruled in favor of Tarla Makaeff, the former student, ordering the business college to pay her $798,000 for damages and legal fees.
So, legally, can Donald Trump sue the New York Times for releasing documents that were obtained illegally? After all, this is a world with hacker groups like Anonymous releasing documents, sites like WikiLeaks, and the notorious cases of Edward Snowden and Chelsea Manning as whistleblowers. So there has to be legal precedent on whether or not the New York Times is covered by the First Amendment.
It turns out that they are covered, and Donald Trump has no legal basis to file any sort of “legal action” against them.
One of the first lessons that any aspiring journalist learns is that the First Amendment provides a bullet-proof shield against lawsuits when they publish documents that are lawfully obtained. Especially in cases where those documents are a matter of public concern. However, when it comes to documents that were obtained outside of the law, there was still a crime committed. Is the journalist at fault then? It turns out that legally, the onus of the crime falls on the person who leaked the documents, not the newspaper or journalist that publishes them.
The first legal precedent was created in 1989. The landmark case, The Florida Star v. B. J. F. showed that a newspaper, and by extension, its journalists, are not liable for publishing information that was truthfully reported from public records, except in very specific cases.
The second precedent was established in 2001, with the Supreme Court decision in Bartnicki et al. v. Vopper, aka Williams, et al. A radio station broadcast over the air a taped conversation that was illegally acquired. Because the radio station did nothing illegal to obtain the tape, they were not liable. This essentially means that the media cannot be held liable even if someone else broke the law.
Because the Times did nothing to encourage or facilitate the leak of the tax documents and were the passive recipients of the documents (they say they received them anonymously through the mail), they have nothing to worry about from a legal standpoint.
[Featured Image by Lynne Sladky/AP Images]