Donald J. Trump’s threat to sue The New York Times for its report about his leaked 1995 state tax returns showing he lost nearly $1 billion is as predictable as it is laughable.
Trump’s lawyer pledged “prompt initiation of appropriate legal action” against the Times, saying the Oct. 1 story was “illegal” because Trump did not authorize the release of his confidential tax returns.
What is the “appropriate” legal action? None.
Even my journalism students in my entry-level media law class know that the First Amendment provides an absolute legal shield to journalists who are sued for publishing lawfully obtained documents that are a matter of public concern.
The U.S. Supreme Court’s rulings in Pentagon Papers, Florida Star v. B.J.F., and the tongue-twisting Bartnicki v. Vopper created a First Amendment protection for journalists who publish documents that are confidential by law – so long as the journalist is a passive recipient of the documents. The journalist cannot be prosecuted for criminal violations or sued under civil privacy laws even if the leaker broke civil or criminal laws by obtaining or leaking the documents.
The internet is blowing up with stories saying that the Times could be prosecuted criminally under federal tax law 26 U.S. Code Section 7213(a)(3), which makes it a felony for “any person to … willfully print or publish” tax returns provided “in a manner unauthorized” by law. But this is a federal law governing federal tax returns and does not apply to the Times’ publication of Trump’s state tax returns. Even if it did apply, it would probably be unconstitutional as applied to the Times, but we don’t need to go there.
Which takes us back to Bartnicki, where the Supreme Court ruled that the government could not punish a radio journalist for airing an illegally taped phone call because the journalist received the tape from a third-party and the tape was a matter of public concern. “We think it clear that …that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from [a journalist’s] speech about a matter of public concern.”
There can be no dispute that the tax returns of a current presidential candidate are a matter of public concern, especially when that candidate is campaigning as a successful businessman, has several active businesses and business ties that may influence his decisions as president, and pledges to drastically change the tax code. The Times says it was a passive recipient of the documents, which were mailed anonymously. Trump, therefore, could not win a lawsuit against the Times based on a claim for violation of secrecy laws governing tax returns or invasion of privacy.
But, hey, the First Amendment never got in the way of Trump threatening or filing frivolous lawsuits to chill speech.
My study of the six speech-related cases filed by Trump & Co. found that all five filed in public courts were dismissed before trial. Trump’s only victory came in a private arbitration decided by a rent-a-judge who declared Trump the winner because the defendant was a no-show.
Here’s a walk down Trump’s Libel Walk of Shame, from LOL to ha ha.
My favorite is when Trump sued Bill Maher, host of HBO political talk show Real Time in 2013. Trump was in full birther mode at the time, trafficking his racist claim that our first black president, Barack Obama, was born in Kenya and demanding to see his birth certificate.
Maher launched his own birther attack: Maher would donate $5 million to charity if Trump would provide his birth certificate to disprove he was the “spawn of his mother having sex with an orangutan.”
Trump provided his birth certificate and filed a $5 million breach of contract lawsuit against Maher, only to quickly withdraw it, robbing Maher of the pleasure of slapping down one of LA’s silliest cases, even by crybaby Hollywood-celebrity standards.
Just two months ago, a federal judge in Las Vegas bounced the deceptive advertising lawsuit filed in 2015 by Trump’s Las Vegas hotel companies against two labor unions for calling Trump anti-union. As the judge ruled on Aug. 8, labor protests are hardly advertising.
Trump’s greediest lawsuit was his $5-billion libel lawsuit filed in 2006 against Timothy O’Brien for saying in his book TrumpNation, The Art of Being The Donald, that Trump was at best worth $250 million, not the billions Trump claimed.
A Jersey court dismissed the case because Trump failed to prove O’Brien had “any actual doubts” about the accuracy of his book and Trump lacked any “reliable” evidence that he was worth billions, admitting his net worth is “based on [his] … own feelings.”
Trump University – Trump’s for-profit real estate “school” – lost its $1-million libel lawsuit in 2014 against a former Trump U student. Trump U sued Tarla Makaeff in California for saying Trump U and its affiliates engaged in “deceptive business practices,” “trickery,” and “fraud.” It took four years, but the libel claim was dismissed by a federal judge who ruled that Trump U failed to prove that the former student published with knowing falsity.
Trump fell in love with libel litigation when he filed his first libel lawsuit in 1984 against the Chicago Tribune and its architecture critic for calling Trump’s 1980’s plan to erect a 150-story Manhattan skyscraper “aesthetically lousy.” The lawsuit was dismissed by a federal judge in New York who said there is no accounting for taste and Trump should get a thicker skin.
Trump has one “victory:” Trump’s Miss Universe/Miss USA pageant company sued and won a $5-million default libel judgment in 2013 against Miss USA contestant in Sheena Monnin for calling the Miss USA pageant “rigged.” (Was she sued for using Trump’s favorite word?) But Monnin got bad advice from her attorney to skip the private arbitration, which was decided by a rent-a-judge who gave Trump a victory based on Monnin’s default. Winning by default is not a true win. It’s just good luck.
The Times is not likely sweating its tax return story. When faced with real lawyers and real judges who know about the First Amendment and libel law, Trump & Co. gets kicked out of court.
Susan Seager is a First Amendment attorney in Los Angeles who teaches media law at the University of Southern California.