From the Washington Post: The New York Times risked legal trouble to publish Donald Trump’s tax return

Will this be the Pentagon Papers of 2016?

- Click here for the article.

Dean Baquet wasn't bluffing.

The New York Times executive editor said during a visit to Harvard in September that he would risk jail to publish Donald Trump's tax returns. He made good on his word Saturday night when the Times published Trump tax documents from 1995, which show the Republican presidential nominee claimed losses of $916 million that year — enough to avoid paying federal income taxes for as many as 18 years.

Federal law makes it illegal to publish an unauthorized tax return or "return information":

It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.

The term "return information" covers not only return documents themselves but also the "amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments or tax payments."

The Times published the first page of Trump's 1995 New York state resident income tax return, the first page of his New Jersey nonresident tax return and the first page of his Connecticut nonresident tax return.

Under New York law, it is unlawful "to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return." Non-government employees face fines of as much as $10,000 and imprisonment for as long as one year.

In New Jersey, "any person ... divulging, disclosing or using [tax] information shall be guilty of a crime of the fourth degree," which carries a maximum sentence of 18 months in prison.

Connecticut's law against disclosure of tax information is more narrowly worded and, as the Hartford Courant reported, appears not to apply to the Times.

Baquet said during a panel discussion at Harvard that if the Times' lawyers advised him not to publish Trump tax returns, he would argue that such information is vital to the public interest because the real estate mogul's "whole campaign is built on his success as a businessman and his wealth."

Two weeks later, Times reporter Susanne Craig found tax documents in her mailbox.

From the American Thinker: Trumping Free Speech

The candidate wants to make it easier for people to sue the media - like in Britain. The author thinks this is a bad idea.

- Click here for the article.

The American view is that there are inevitable journalistic errors if we want to give freedom of expression the “breathing space” it needs. The idea is to allow most speech, including some false statements, to be vetted in the “marketplace of ideas.”

In medieval England, as in other cultures, duels, armed raids and other violent retaliation were regarded as natural, honorable responses to defamation.” A peaceful alternative was needed, and so the king's court criminalized political or seditious statements against aristocrats. The law evolved as time went on, but this English notion of criminalizing political or seditious libel was on the minds of those who drafted the U.S. Constitution.

Even in the U.S. there was briefly a law, the Sedition Act of 1798, that made it a crime to write or speak anything “false, scandalous and malicious” against the United States government. If you could prove the allegation was true, you would not be penalized. The Act was attacked as unconstitutional. It expired by its own terms in 1801, but not before it had crystallized the idea that discussion of public matters was guaranteed by the Constitution and that neither good-faith errors nor even libels could overcome this right.

. . . Back to Trump: Would he like to be sued by George W. Bush for claiming that Bush lied to get us to go to war in Iraq? We lose if we suppress speech that in some cases can avert threats to our safety or prevent bad policy.

Ironically, the media itself interferes with its own freedom when for example, out of cultural sensitivity, it describes "jihadist attacks on American citizens at home as ‘work-related accidents’ and, elsewhere, as ‘militant attacks.’" The idea that Islam inspires these attacks is not one that the media wants to spread.

Freedom of speech is not a universal value. Jihadists don't believe in it, Marxists don't believe in it, dictators and their henchmen don't believe in it. Given that it is a core American value, we should be willing to be different than much of the world and accept the tradeoffs that go with it.

Libel in Tulsa

When we cover civil liberties, we touch on the limits of freedom, including one of the limits of press freedom: libel. An unusual example is in the news. Unusual because one newspaper is suing another.

Slate reports on a lawsuit between the major daily paper in Tulsa, The Tulsa World, and its weekly alternative, Urban Tulsa. The weekly questioned the daily's circulation figures and the are now being sued by it:

According to the World's news story, the suit—which I have not seen—alleges that the Bates column falsely claims "that the World had misled advertisers about the newspaper's circulation." World Publisher Robert E. Lorton III tells the World's reporter, "When a firm purportedly in the news business makes a claim that we have misled our advertisers, they call into question our integrity, and we cannot and will not let that stand." According to the World article, the suit—which, remember, I have not seen—says that Urban Tulsa knowingly published the false information in an attempt to "gain commercial advantage."

Lorton could be absolutely right, except here's what Bates actually wrote:

The steep drop between the paid consultant's March 2005 [circulation] count and the March 2006 ABC numbers suggest that the World was inflating its circulation by as much as 20 percent.

Apparently enough wiggle room exists in both the terminology, and in how circulation numbers are tabulated, to make a libel case difficult to win. Slate argues that the lawsuit is a very bad idea:

My unsolicited advice to Bates and Urban Tulsa: Call a press conference, pass out party hats, and say that you welcome the World's suit! Tell the Tulsa press corps you're dying to use the power of discovery to dig deeply into the World's circulation numbers to determine precisely how accurate its audits have been over the last 20 years. Oh, and make sure to enlist one of the World's big, regular advertisers as your ally. They'll be very interested in getting a close-up of the paper's circulation numbers.

Vital Questions of the Day, Part One

Can a Sandwich Be Slandered?

Richard Jewell is Dead

Often when we cover civil liberties and the media, and veer off into the First Amendment's restrictions on press freedoms, we discuss the case of Richard Jewell, who died last week of a heart attack.

Jewell seemed to be proof of the adage that no good deed goes unpunished. He was a security guard who spotted a suspicious package against a stage during the Olympics in Atlanta and began moving people away until it exploded. He has since been credited with saving the lives of many who were standing by the package. After a brief moment when he was considered a hero, the story shifted and he was suspected of having planted the bomb in order to orchestrate his fifteen minutes on the spotlight.

The FBI began to investigate him publicly, which led to media attention that portrayed him negatively. On NBC Tom Brokaw stated: "The speculation is that the FBI is close to making the case. They probably have enough to arrest him right now, probably enough to prosecute him, but you always want to have enough to convict him as well. There are still some holes in this case". Though he was cleared of any suspicion officially, his reputation was tarnished.

Which raises issue of libel. Jewell sued several news sources for their actions, but it was worth considering whether he was in fact libeled based on its legal definition.

As a simple matter, libel refers to the defamation--in a fixed medium, like a newspaper or TV report--of an individual's character based on false information. This is nice and tidy, but often the public has a compelling interest in knowing about suspicions of wrong doing on the part of public officials, that is people who habitually are in the media because they are elected officials or somehow choose to be there (think about Angelina Jolie, now stop).

In this section of class we tend to spend time on the case of Sullivan v. the New York Times. The case involved whether a full page ad taken out in the New York Times, which was critical of the actions of the Montgomery Police Department defamed the city commissioner--L.B. Sullivan, and whether he then had the right to sue. The Supreme Court unanimously ruled that since
Sullivan was a public person, and that punishment for criticizing him would put a chilling effect on the debate about the nature of persons such as Sullivan, statements that would not be allowed were they directed towards private persons are protected if directed towards public persons, unless it could be proved that there was actual malice involved in the publication of the story, or a reckless disregard for the truth.

This applies to Jewell's case because soon after the original incident, he granted interviews, and thereby became a public person. He was not an elected official, but someone that would be of interest to the community.

The lawsuits he filed against NBC, the Atlanta Constitution and others were settled out of court, so we will never know whether he in fact was a public person, as understood by the Supreme Court. If so, the media outlets would not have had to pay him a thing, since they were simply building off allegations made by the FBI. They were nervous enough about the outcome to strike deals with him. Sadly, most of his settlement went to the lawyers who represented him.

I'm not sure if he ever received an apology from Jay Leno. I can't imagine that it would be much fun to be called the unadoofus before a national audience.