The New York Times just published Donald Trump’s tax returns without his “affirmative authorization” as required by law. (See IRS Publication 4639). This violates the plain language of the law, and is considered criminal if “willful.” In tax laws in general, and First Amendment cases as well, courts compel a definition of willful that requires the individual know the law and know the law prohibits them from doing what they did. Here is where The New York Times runs into true trouble.
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Notably, the Supreme Court left open whether The New York Times could have been prosecuted from publishing the Pentagon Papers, but at least there, the Times did not knowingly violate a specific criminal statute and promise to do so in advance of receiving the documents. The D.C. Circuit, in the McDermott case, implied the law did not allow a newspaper to publish material it knew, and admitted it knew, was obtained unlawfully, when a specific law prohibited its publishing.
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... the First Amendment does not protect the open solicitation and promise to publish stolen, statute-protected, private documents. The statute, like the statute found constitutional in McDermott, protects Trump’s right to the privacy of his free speech. Free speech isn’t free if it can’t be private. The First Amendment thus protects “freedom not to speak publicly, to speak only privately,” as the D.C. Circuit acknowledged in the McDermott case. Even liberal leaning publications like the Huffington Post acknowledged that a journalist cannot use the First Amendment as a shield to solicit a crime. As Baquet admitted at the Harvard Forum, the New York Times executive editor would advocate “crossing a line” (Woodward’s words) if it concerned Trump’s tax returns.
