Topic: Law and Civil Liberties

Did the New York Times Violate the Law by Publishing Trump’s Tax Return, or Is the Law Unconstitutional?

After the New York Times published the 1995 tax returns of Donald Trump, Callum Borchers at the Washington Post and others have said it might be illegal. Trump’s lawyer claimed that publishing the returns was illegal without Trump’s consent, and, being Trump’s lawyer, he of course threatened “prompt initiation of appropriate legal action.”
 
Adding to the confusion, during a panel discussion at Harvard Law School in mid-September, Bob Woodward, associate editor of the Washington Post, and Dean Baquet, executive editor of the New York Times, presciently discussed whether they would publish Trump’s tax returns if they got ahold of them. “You know what your lawyers would tell you,” Woodward said, ”if you publish them, you go to jail.” Baquet said he would “seriously fight to publish [Trump’s] tax returns.”
 
For federal tax returns, there is a specific statute that prohibits publishing without consent (26 U.S.C. § 7213(a)(3)). But the Times only published the first page of Trump’s New York, New Jersey, and Connecticut tax returns (not the federal tax returns) so that statute would not apply. 
 
Of those states, only New York has a privacy statute that could be construed to apply to non-government employees/contractors like the Times. Not to make your brain atrophy from an overdose of legalese, but the New York statute prohibits
any person who, pursuant to this section, is permitted to inspect any report or return or to whom a copy, an abstract or a portion of any report or return is furnished, or to whom any information contained in any report or return is furnished, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this article.
This bit of printed chloroform is a convoluted statute (welcome the study of law), but the fairest reading is that the phrase “pursuant to this section”—i.e., the entire section describing the “general powers of the tax commission”—applies only to those who are “permitted to inspect any report or return” under New York law, such as some government contractors. The other entities listed, such as those “to whom a copy, an abstract or a portion of any return is furnished,” can be anyone, even those who obtained a return not “pursuant to this section.” That includes the Times.
 
So, let’s assume that what the New York Times did was against the law. A more interesting question is: would that law be constitutional under the First Amendment? After all, prohibiting someone from divulging information to the public is clearly an abridgement of speech, so would the law fall under an exception to the general rule that the government cannot prohibit speech?
 
The most relevant case would be Bartnicki v. Vopper from 2001. That case dealt with a radio commentator who broadcast a tape of an illegally recorded conversation between a chief union negotiator and a union president. The federal statute at issue prohibited people from “willfully disclosing the contents” of any communication that the person knew or had reason to know “was obtained through an illegal interception.” The Court struck the statute down as unconstitutional because it “implicates the core purposes of the First Amendment” by imposing “sanctions on the publication of truthful information of public concern.” Publishing crucial and truthful information about a presidential candidate a month before the election certainly implicates matters of “public concern.”
 
Finally, because the New York law makes it illegal to merely “divulge or make known” tax return information,  it is broader than laws that prohibit someone from releasing a tax return that he knows (or has reason to know) was obtained illegally. In other words, it prohibits even more speech than the law in Bartnicki. Therefore, it seems likely that the law would be struck down as unconstitutional. 

Of Millionaire “Fugitives” and the Rule of Law

Megaupload.com was once the 13th most popular website on the internet, with more than 82 million unique visitors and a billion total page views during its seven-year operation. The site allowed people to store files on the cloud for later use—and some users inevitably stored copyrighted TV shows, films, songs, and software. In 2012, the U.S. government charged the site’s owner, Kim Dotcom, and its operators with conspiracy to commit copyright infringement. The defendants are currently resisting extradition to the United States (Dotcom lives in New Zealand), as is their right under extradition treaties.

In 2014, the seemingly frustrated government moved to seize the defendants’ considerable assets in a civil-forfeiture action, claiming that the assets are probably connected to the alleged criminal activity. The government had a major problem, however, as the assets that they were seeking to seize were not located in the United States, but in Hong Kong and New Zealand. Under traditional rules of in rem jurisdiction—a legal theory that allows courts to gain jurisdiction over property—the court must have “control” over the property to entertain the claims, which the district court did not have in this case.

The district court, however, ignored fundamental principles of statutory construction, and agreed with the government’s argument that a federal statute—conferring only venue to the district courts in cases where property was located outside of the United States—also expanded the court’s jurisdiction and fundamentally altered the traditional requirement that courts have control over the property to assert jurisdiction over it.

This misreading of the statute also created a serious constitutional issue under Article III. It is a fundamental constitutional rule that federal courts can’t issue mere “advisory” opinions. When a court lacks control over property located in a foreign country, it necessarily relies on another sovereign to enforce that order, making it advisory as to how the other sovereign should enforce the judgement.

To make matters worse, the court here also “disentitled” the defendants from presenting evidence that their property was not subject to seizure. Under civil-forfeiture laws, the government can take property without an underlying criminal conviction based only on the allegation of a crime. Those whose property has been seized can get it back by proving that their property is “innocent.” The government, however, is preventing the defendants from even making that argument. Using the “fugitive disentitlement” doctrine, the government is blocking the defendants from challenging the forfeiture.

You Have a Constitutional Right to Record Public Officials in Public

Millions have watched cellphone videos of police violating Americans’ rights. United States Customs and Border Protection (“CBP”) is trying to make sure the same doesn’t happen to them by banning video and photography—not in secure spaces or regarding special operations, but out in the open in the ordinary court of business.

In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.

Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.

Be Smart and Lawyer-up!

Last week we hosted a book forum for Professor James Duane’s new title, You Have the Right to Remain Innocent.  In addition to teaching you something about constitutional and criminal law, this lecture offers valuable practical advice that can help you and your friends to avoid prosecution and imprisonment and save thousands of dollars in legal fees.  As Duane notes, the key thing to remember is that there is a fundamental discrepancy between what the police say to us and what they say to their own children regarding police investigations.

Here’s an excerpt from his book:

There are many ignorant sentimentalists who believe that our government is deserving of our loyal cooperation and support, and that every good patriot with an innocent conscience should be glad to answer any questions from government agents.  That is hogwash….You cannot write tens of thousands of criminal statutes, including many touching upon conduct that is neither immoral or dangerous, write those laws as broadly as you can imagine, scatter them throughout the thousands of pages of United States Code–and then expect decent, law-abiding, unsuspecting citizens to cooperate with an investigation into whether they may have violated some law they have never even heard about.  The next time some police officer or government agent asks you whether you would be willing to answer a few questions about where you have been and what you have been doing, you must respectfully but very firmly decline.

The slim book is just 120 pages.  Read the whole thing so you’ll have the confidence to assert your rights under pressure.

Here is the lecture:

Don’t keep this valuable information to yourself.  Blast it out to friends and family members on social media.

Related Cato work here and here.  The full book forum, with comments from Georgetown Law Professor Randy Barnett, here.

 

How Not to Think About Drone Policy

Today, The Oklahoman published an editorial that serves as a good example of how not to think about drone policy. According to The Oklahoman editorial board, a proposed drone weaponization ban was a solution in search of a problem, and concerns regarding privacy are based on unjustifiable fears. This attitude ignores the state of drone technology and disregards the fact that drones should prompt us to re-think privacy protections.

Weaponized drones are often thought of as tools of foreign policy, but technological advances mean that Americans should be keeping an eye out for armed drones on the home front. Yet, in the pages of The Oklahoman readers will find the following:

we know of no instance where Oklahoma law enforcement officers have used drones to shoot someone without justification. To ban the police from using weaponized drones appears a solution in search of a problem.

I’m not aware of police in Oklahoma using drones to shoot someone with justification, but that’s beside my main point. Oklahoman lawmakers shouldn’t have to wait for a citizen to be shot by a weaponized drone before considering regulations. It would be premature for legislators to consider teleport regulations or artificial intelligence citizenship bills. But weaponized drones are no longer reserved to the imagination of science fiction writers. They’re here.

The “Pardon Snowden” Case Just Got Stronger

Yesterday, the Department of Justice Inspector General (DoJ IG) issued a long overdue Congressionally-mandated report on FBI compliance with the PATRIOT Act’s Section 215 “business records” provision between 2012 and 2014. It is the first such report issued that covers the initial period of Edward Snowden’s revelations about widespread domestic mass surveillance by the federal government. Since his indictment for leaking the information to the press, Snowden’s lawyers have argued that he should not be prosecuted under the WW I-era Espionage Act because his revelations served the public interest. The DoJ IG report provides the clearest evidence yet that Snowden’s lawyers are correct (p. 6):

In June 2013, information about the NSA’s bulk telephony metadata program was publicly disclosed by Edward Snowden. These disclosures revealed, among other things, that the FISA Court had approved Section 215 orders authorizing the bulk collection of call detail records. The telephony metadata collected by the NSA included information from local and long-distance telephone calls, such as the originating and terminating telephone number and the date, time, and duration of each call. The disclosures prompted widespread public discussion about the bulk telephony metadata program and the proper scope of government surveillance, and ultimately led Congress to end bulk collection by the government in the USA Freedom Act.

Nevada Supreme Court: Education Savings Accounts Are Constitutional, Funding Mechanism Isn’t

In a landmark decision, the Supreme Court of Nevada today upheld the constitutionality of the nation’s most expansive educational choice law. However, the court ruled that the funding mechanism the legislature adopted is unconstitutional. If the legislature creates a new funding mechanism–as it could and should in a special session–then the ESA program could be implemented right away.

Enacted in 2015, Nevada’s education savings account (ESA) policy was originally scheduled to launch at the beginning of this year, but it immediately drew two separate legal challenges from the government schooling establishment and the ACLU and its allies. Nevada’s ESA provides students with $5,100 per year (plus an additional $600 for low-income students or students with special needs) to use for a wide variety of approved educational expenditures, including private school tuition, tutoring, text books, online courses, homeschool curricula, and more. Families can also roll over unspent funds from year to year. As the Heritage Foundation’s Lindsey Burke and I have explained, the ability to customize a child’s education and save funds for later are significant improvements over school vouchers:

ESAs offer several key advantages over traditional school-choice programs. Because families can spend ESA funds at multiple providers and can save unspent funds for later, ESAs incentivize families to economize and maximize the value of each dollar spent, in a manner similar to the way they would spend their own money. ESAs also create incentives for education providers to unbundle services and products to better meet students’ individual learning needs. 

Of the five existing ESA programs, Nevada’s is the most expansive. Florida, Mississippi, and Tennessee restrict their ESAs to students with special needs. Arizona originally restricted ESA eligibility to students with special needs, but has since included foster children, children of active-duty military personnel, students assigned to district schools rated D or F, and children living in Native American reservations. In Nevada, all students who attended a public school for at least 100 days in the previous academic year are eligible. 

In two separate lawsuits, opponents of educational choice alleged that Nevada’s ESA violated the state constitution’s mandate that the state provide a “uniform system of common schools” (Article 11, Section 2), its prohibition against using public funds for sectarian purposes (Article 11, Section 6), and a clause requiring the state to appropriate funds to operate the district schools before any other appropriation is enacted for the biennium (Article 11, Section 10). The court found that the ESA was constitutional under the first two constitutional provisions, but the way it was funded violated the third.