Category: Privacy

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FAN 200 (First Amendment News) Margot E. Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”

Margot E. Kaminski is an associate professor of law at the University of Colorado Law School. She specializes in the law of new technologies, focusing on information governance, privacy, and freedom of expression. Her forthcoming work on transparency and accountability in the EU’s General Data Protection Regulation (GDPR) stems from her recent Fulbright-Schuman Innovation Grant in the Netherlands and Italy.

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Professor Margot Kaminski

The Supreme Court’s recent Fourth Amendment cases show a strong awareness that privacy can implicate First Amendment values. In June 2018 in Carpenter v. United States, a case addressing warrantless location tracking through cell phone records, the majority noted that a lack of privacy can reveal (and presumably chill) “familial, political, professional, religious, and sexual associations.” In Riley v. California, a 2014 Fourth Amendment case addressing cell-phone searches, the majority recognized that while “[m]ost people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read,” a cell phone can store all of these things. With these comments, the Court observed that free expression often relies on privacy, and implied that absent privacy protections, people may conform in their choice of reading material, their political affiliations, and ultimately, their speech. In other words, privacy protections often also protect First Amendment rights.

But at the same time, the Court’s recent First Amendment decisions have created additional obstacles for those who seek to draft an American data privacy law.

The United States famously does not have omnibus federal privacy protection. Instead, U.S. privacy law is a patchwork of sectoral protections (like protections for video records, consumer protection at the FTC, state privacy torts, and state AG enforcement). Legislators reading Carpenter may conclude that a number of Justices in that case (including Justice Samuel Alito, who explicitly calls for privacy lawmaking in his dissent) understand the need for omnibus data privacy law. But even as the Court in Carpenter seems to point to the need for privacy legislation, its First Amendment decisions in Reed v. Gilbert and NIFLA v. Becerra threaten to tie legislators’ hands.

Reed treats content-based regulation with suspicion; Becerra does the same with disclosure requirements. In Reed, which addressed a town’s rules for the placement of signs, the Court held that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” All content-based regulation is subjected to strict scrutiny. Thus, a regulatory scheme that treated Political Signs differently from Temporary Directional Signs was content-based, and subject to strict scrutiny, and because it failed strict scrutiny, unconstitutional.

Becerra, decided this year, limits legislators’ ability to require truthful disclosures. The Court preliminarily enjoined California’s disclosure requirements for crisis pregnancy centers—centers that often pretend to provide abortion services but in practice discourage women from getting abortions. While claiming to be narrow and fact-bound, the majority in Becerra applied Reed’s broad understanding of content-based regulation to disclosure laws. The majority of the Court in Becerra explained that California’s disclosure law was “content-based regulation of speech” because “[b]y compelling individuals to speak a particular message, such notices ‘alte[r] the content of [their] speech.”

Why, in a discussion of data privacy, do I focus on Reed and Becerra and not on an earlier line of cases that directly address privacy laws? Because to an extent many Americans do not realize, data privacy protections are actually about increasing speech, not decreasing it. And at least as enacted elsewhere in the world, the efficacy of data privacy regimes as good policy often depends on being able to calibrate the law differently for different actors or scenarios. The first implicates Becerra on disclosures; the second implicates Reed and content-based analysis.

The Fair Information Practices, which were originally formulated in the United States, are the basis for data privacy laws around the world and are largely built around a concept that should be complimentary to the First Amendment: transparency. Take the EU’s General Data Protection Regulation (GDPR) as an example. Individuals are supposed to be notified when companies obtain their information. They have a right to access their data, and to find out to whom it has been disclosed. They have a right to find out where data has come from. Companies have to explain the purpose of data processing, and how profiling and automated decision-making work. All of these transparency rights and obligations attempt to correct, or at least expose, very real power imbalances between individuals and the companies that profit from their data. The GDPR is a disclosure law, as much as it is a right to stop other people from speaking about you.

Today’s paradoxical privacy problem, then, is that even as data privacy regimes rely in large part on increasing, not decreasing, speech by requiring disclosures to users, the Court’s recent First Amendment cases now shut down disclosure as a regulatory tool. Under Becerra’s reasoning, anydisclosure requirement could potentially be characterized as content-based (or, per Justice Stephen Breyer, “[v]irtually every disclosure law requires individuals ‘to speak a particular message’). The GDPR’s requirement that companies disclose the source of their data? Content-based compelled speech. The GDPR’s requirement that companies reveal to individuals the information held about them? A “particular message,” and thus content-based compelled speech.

The majority in Becerra attempts to cabin the impact of its opinion both (1) by pointing to the possibility of regulating speech incidental to regulated conduct (as it alleges was done by the majority in Planned Parenthood v. Casey, a case addressing compelled disclosures by doctors to patients seeking abortions), and (2) by carving out existing disclosure laws (“we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products”). The problem is that data privacy does not fit squarely within either of these potential exceptions. It regulates information flow, not conduct, or at least conduct that’s nearly inextricable from information flow (though I’ve argued elsewhere that some forms of privacy violations are actually framed in First Amendment law as conduct-like). And because the U.S. lacks omnibus data protection law, privacy doesn’t readily fall into the Court’s attempt to exempt existing consumer protection law. By virtue of its very newness, data privacy may be more heavily scrutinized than other accepted areas of consumer protection.

Justice Stephen Breyer (credit: The Nation)

As Justice  Breyer notes in his dissent, “in suggesting that heightened scrutiny applies to much economic and social legislation,” Becerra jeopardizes legislators’ judgments in areas long left to legislative discretion. Reedcompounds this problem.Some kinds of information, and some behaviors, create greater privacy harms than others. For example, the GDPR, like many American privacy laws, puts in place added protections for “special categories” of data—or what we would call “sensitive information.” Is this content-based discrimination? Does it apply “to particular speech because of the topic discussed?” If so, this would potentially implicate even our current sectoral approach to privacy, not to mention hundreds of behavior-or-information-type-specific state privacy laws. The GDPR also, in many places, distinguishes between categories of companies. Take, for example, the GDPR’s derogation for small and medium-sized enterprises, which are subject to less onerous record-keeping provisions, presumably because smaller companies pose less of a risk of inflicting privacy harms. A government may also want to create an exception to, or less onerous version of, privacy law for smaller companies as a matter of innovation or competition policy, to encourage the growth of startups. Under Reed —and its predecessor, Sorrell v. IMS — identifying particular topics or speakers, or categories of information flow, could give rise to a challenge of regulation as content-based or even viewpoint-based. On paper at least, as Justice Elena Kagan noted in her concurrence, Reed’s broad take on content-based regulation “cast[s] a constitutional pall on reasonable regulations” and puts in place judicial second-guessing of matters that legislatures are likely institutionally better situated to assess.

One potential loophole, or at least limiting principle, to explore is Justice Samuel Alito’s strangely confident conviction in his concurrence, joined by both Justice Sonia Sotomayor and Justice Anthony Kennedy, that “Rules imposing time restrictions on signs advertising a one-time event” would not be considered content-based. This suggests that it may be possible for legislators to continue to name things in information-related legislation, when the restriction is the kind of restriction (e.g. time place and manner) that the First Amendment allows. But how to line-draw between a law that imposes temporal restrictions on “signs advertising a one-time event” and a law that restricts, in other ways, “Temporary Direction Signs” is frankly beyond me.

Thus legislators wanting to write—or in the case of California, that have recently written and passed—data privacy law may find themselves stuck between Reed and a hard place. To some extent, this can be understood as one example of what some have described as the Lochnerization of the First Amendment: its use for deregulatory purposes. But in the context of privacy, things are perhaps uniquely complicated. Speech values fall squarely on both sides. By regulating speech to protect privacy, you both restrict and protect speech. As the Court noted in Bartnicki v. Vopper, “the fear of public disclosure of private conversations might well have a chilling effect on private speech. . . . In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively.” And as the Court has increasingly recognized in its Fourth Amendment jurisprudence, personal information beyond communicative content—such as location data, or reading material or pictures stored on a cell phone—can implicate First Amendment concerns as well, by revealing your associations, your political affiliations, your opinions, your innermost thoughts.

In some ways, Carpenter and other cases move the United States closer to Europe on privacy. There is increasing convergence on what counts as sensitive information: the GDPR includes location data in its definition of “personal data;” and the Court in both Jones and Carpenter recognized an expectation of privacy in publicly disclosed location information. The Court in Carpenter continued a recent theme in Fourth Amendment jurisprudence of referring to what might be understood as First Amendment harms; the GDPR, too, addresses speech-related privacy. Even more significantly, Carpenter begins to undermine a central premise of U.S. privacy law: that you don’t have an expectation of privacy in information you have shared. This suggests that privacy protections might travel with private information, and pop up later in information flows—in other words, that a data privacy model may now be more palatable in the United States. And a disclosure-based privacy law targeting third parties (data brokers) is exactly what California recently passed.

But the First Amendment, once again, may be the context that ultimately defines, through constraints, American privacy law. Determining how to navigate the roadblocks of the Court’s recent First Amendment jurisprudence may—even more than legislative inertia—be the central problem U.S. data privacy now faces.

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FAN 173 (First Amendment News) Lawyer for Henry Holt & Michael Wolff Rebuffs Trump Cease & Desist Demands

Elizabeth A. McNamara (Davis Wright Tremaine)

In a categorical rebuff of the cease and desist demand sent by President Trump’s lawyer Charles J. Harder to Michael Wolff and his publisher Henry Holt, their lawyer Elizabeth A. McNamara, refused to halt publication of Fire and Fury: Inside the Trump White House or to issue any retraction or apology. Here are a few excerpts from the text of that three-page letter sent by Ms. McNamara to Mr. Harder:

  • No defamation identified: “Though your letter provides a basic summary of New York libel law, it stops short of identifying a single statement in the book that is factually false or defamatory.”
  • Accurate reporting“[A]s President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump administration and campaign from May 2016 to this past October, and he conducted more than 200 interviews with President Trump, most members of his senior staff and with many people they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff’s book. We have no reason to doubt — and you letter provides no reason to change the conclusion — that Mr. Wolff’s book is an accurate report on events of vital public importance.”
  • President’s ‘bully pulpit’ & ability to respond: “We have no reason to doubt . . . that Mr. Wolff’s book is an accurate report on events of vital public importance. Mr. Trump is the President of the United States, with the ‘bully pulpit’ at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it.”
  • False light invasion of privacy: Re New York law of false light invasion of privacy claim: McNamara stressed that such a claim doesn’t  exist under New York law. Additionally, she noted that even if such a claim did exist in New York law: “it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office.”
  • Re document preservation, Ms. McNamra stressed that her clients “will comply with any and all document preservation obligations that the law imposes on them.”
  • Charles J. Harder

    President’s duty to preserve documents: “[W]e must remind you that President Trump, in his personal and governmental capacity, must comply with the same legal obligations regarding himself, his family members, their businesses, the Trump campaign, and his administration, and must ensure all appropriate measures to preserve such documents are in place,” McNamara wrote. “This would include any and all documents pertaining to any of the matters about which the book reports.”

  • “Should you pursue litigation against Henry Holt or Mr. Wolff, we are quite confident that documents related to the contents of the book in the possession of President Trump, his family members, his businesses, his campaign, and his administration will prove particularly relevant to our defense.”
  • No apologies: “My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”
Related

→ Porter Anderson, Macmillan CEO Memo to Employees in Response to Trump’s Cease-and-Desist Letter, Publishing Perspectives, January 8, 2018

 →Robert Barnes, Trump faces uphill battle in trying to block critical book, legal experts say, Washington Post, January 4, 2018

 →FAN 99.2, Trump on Libel Law & Freedom of the Press, February 27, 2016

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Call for Papers: Municipalities and Privacy Protection

Seton Hall Law School’s Institute for Privacy Protection is pleased to announce a Call for Papers for its conference “New and Nontraditional Actors in Privacy and Social Media Regulation,” which will be held on Friday, November 3, 2017 at Seton Hall Law School. The conference will highlight the growing trend of unexpected players filling in the vacuum left by the federal government in privacy and social media regulation. The Institute looks forward to bringing together legal scholars, members of government, and practitioners to examine the ways in which new players are regulating businesses to promote privacy protection.

The conference will have one presentation selected through a call for papers focusing on the role of municipalities in promoting privacy protection.

To be considered, an abstract and CV should be submitted to the Institute’s Faculty Fellow, Najarian Peters at Najarian.peters@shu.edu. Although there is no publication requirement, preference will be given to abstracts accompanied by a paper draft.

The deadline for submission is August 10. The Institute will cover the travel and lodging accommodations of the selected speaker.

The Institute for Privacy Protection was created in 2016 and seeks to educate consumers and businesses and to provide interdisciplinary forums to address emerging privacy issues. The Institute also promotes academic research and educates businesses on proper privacy practices in commercial advertising and consumers in their privacy rights.

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Did You Hear the One About the Alaska Legislator Who Said …

We have folks who try to get pregnant in this state so that they can get a free trip to the city, and we have folks who want to carry their baby past the point of being able to have an abortion in this state so that they can have a free trip to Seattle.

One might think, at first blush, that this is a bad joke.  Yet this quote actually did fall from the lips of Alaska state representative David Eastman of Wasilla (Anchorage suburb, of Sarah Palin fame) last week, in conversation with the Associated Press.  Eastman subsequently made similar comments to other media outlets.  Bear with me as I bracket Eastman’s impeachment of women’s character, returning to it below.

Like me, you are probably wondering about this “free trip” thing, given that the Hyde Amendment prohibits the use of federal funding for abortions.  Turns out, according to the AP story, that the “Alaska Supreme Court has held that the state must fund medically necessary abortions if it funds medically necessary services for others with financial needs.”  Mighty progressive, if you ask me, not least because many women in Alaska must travel vast distances to reach an abortion provider, given the size of the state.  And this can be mighty expensive and involve multiple plane journeys, even within Alaska.  (Bear in mind that the villages around Bethel and the Yukon-Kuskokwim Delta are among many Alaska places not accessible by road.) Ditto for those who must travel for other medical services, which the Alaska court has wisely recognized.

Indeed, speaking of distance, the dust-up created by Mr. Eastman reminds me of one of the most knuckle-headed things I’ve ever seen a judge say about the “undue burden” standard under Planned Parenthood of S.E. Pennsylvania v. Casey (1992):

A woman in Alaska, for example, could be required to travel 800 miles to get to an abortion clinic merely because she lives in one place and the nearest abortion clinic is on the other side of the state. But that certainly doesn’t constitute anything even approaching an undue burden.

The judge who wrote this was Dee Benson (now a senior district judge), and the case was Utah Women’s Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994) (discussed here).  Why the Utah judge thought it appropriate or necessary to use an example from Alaska rather than Utah is unclear.  I suppose he was looking for the most extreme example of distance he could find–to then make the point that such travel would still not trigger a constitutional problem.  Given that Alaska is the largest state in terms of land area, Judge Benson necessarily turned to “The Last Frontier” to illustrate his point.

Interesting in light of this point is the fact that the second largest state in the union, Texas, became the subject of the latest round of litigation over abortion restrictions, culminating in the U.S. Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt.  Of course, distance ultimately loomed very large in relation to the Court’s assessment of the undue burden standard there because women would have been challenged to travel as far as 550 miles each way (from El Paso to San Antonio) to reach an abortion provider had the Court not struck down Texas H.B. 2.  Read more here and here.  Distance as an undue burden is also a reminder of my recent exchange with Prof. Carol Sanger of  Columbia Law  on this blog regarding  the significance of spatiality/geography/rurality as it relates to abortion access.

But let me return now to the issue most directly implicated by Eastman’s comments,  which is less about the burden of distance (and therefore the “situation of women”)–which the state of Alaska has pragmatically taken care of, at least in part–and more about the character of women.  The AP story, by Becky Bohrer, includes not only helpful background for us on abortion availability in Alaska and, for late-term abortions, in Seattle, she also fills us in on the furor Eastman’s comments have generated:

In a speech on the House floor Friday, Democratic Rep. Neal Foster of Nome said Eastman’s comments were unacceptable and said he hoped Eastman would apologize.

“It shocks the conscience to think that a female in a village would want to endure the physical and the emotional pain of getting an abortion just so that they could get a free trip to Anchorage,” Foster said.

Most of the women who live in villages that Foster represents are Alaska Native and feel Eastman’s comments were directed toward them, Foster said. Many Alaska communities are not connected to a road system and smaller communities often have limited health services that necessitate travel to larger communities for care.

Two other “rural lawmakers,” demanded a public apology from Eastman, and Rep. Geran Tarr of Anchorage said she might “seek a motion to censure Eastman,” calling his comments “deeply offensive, racist in nature, and misogynistic.”

It is encouraging to see other legislators standing up for Alaska Natives and other rural populations.  And it also brings me back to the really outrageous part of what Eastman said–that women might purposefully get pregnant so that they can have a day out on the town, a freebie trip to the bright lights to get an abortion … and then tie on some shopping or a fancy meal, maybe even a jaunt up the Space Needle. This outrageous suggestion ties perfectly into Sanger’s over-arching point in About Abortion:  Terminating Pregnancy in the 21st Century:  women take abortion seriously–and we should presume they can make good decisions about it for themselves.  We should certainly not presume–as Eastman suggests–that they will get pregnant willy-nilly to “earn” a frolic in the city.  Insulting, misogynist and racist, indeed.

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Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger

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Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017).

Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion.

The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision.

Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing.

Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns that women do about whether to proceed with a pregnancy.  Yet, the right to life forces, while they often champion the rights of frozen embryos,  do not subject the men’s decisions  to the same intrusion and vilification they reserve for women.  Sanger speculates that if the same law that governs decisions about frozen embryos applied to women’s reproductive decisions, it “would not look quite the same as it does now, with assumptions of incompetence, layers of second-guessing, and invasive counseling.”

About Abortion adds to our understanding of the abortion debate.  It confronts the dishonesty and distortions that characterizes much of the public debate.  It acknowledges the way the issue is deeply intertwined with fundamental questions about the organization of society.  It advocates bringing the experiences of those who have chosen abortion out the shadows, and it succeeds in providing a richer foundation for public consideration of the issue.

About Abortion is an important book that has already received wide attention, including a New Yorker review that coincides with our consideration of it here.  http://www.newyorker.com/magazine/2017/04/03/why-its-become-so-hard-to-get-an-abortion.

For this Concurring Opinions book symposium, we have invited an all-star cast of thinkers who have a variety  of different perspectives on abortion:  Helen Alvare, Caitlin  Borgmann, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.

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FAN 125.1 (First Amendment News) 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns

“[A] lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened ‘prompt initiation of appropriate legal action.’”

“Trump himself tweeted early Sunday: ‘I know our complex tax laws better than anyone who has ever run for president and am the only one who can fix them.’ Again, he did not deny or dispute the Times‘ findings.”

The headline in the New York Times read: “Trump Tax Records Obtained by The Times Reveal He Could Have Avoided Paying Taxes for Nearly Two Decades.” Here is how that story began: Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show. . . . The documents were the first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return. . . .”

Here is how The Times says those documents were obtained: “The three documents arrived by mail at The Times with a postmark indicating they had been sent from New York City. The return address claimed the envelope had been sent from Trump Tower.”

Susanne Craig, The Time I Found Donald Trump’s Tax Records in My Mailbox, New York Times, Oct. 2, 2016 (“I walked to my mailbox and spotted a manila envelope, postmarked New York, NY, with a return address of The Trump Organization. My heart skipped a beat.”)

Trump Reply: According to Eli Stokols writing in Politico: “A statement from Trump’s campaign neither confirmed nor denied that he filed a $916 million loss in his 1995 tax returns, but charged that the documents were ‘illegally obtained’ in what it said was “a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.'”

As reported Dylan Stableford in Yahoo: “‘Mr. Trump is a highly skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required,’ the Trump campaign said in a statement. ‘That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.'”

Federal & State Laws

26 U.S. Code § 7213 (a) (1): “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. . . .”

“(3) Other persons. 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.”

Marc Kasowitz

Marc Kasowitz

Trump’s Lawyer: According to The Times, Marc Kasowitz, a lawyer for Mr. Trump, has threatened “appropriate legal action.” Here is how Mr. Kasowitz is described on his firm’s biographical page:

  • “Described by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator'”
  • “[He] is widely regarded as one of the preeminent trial lawyers in the country.”
  • “He has been honored as a ‘Litigation Trailblazer’ by the National Law Journal.” 
  • “Opponents cited by The American Lawyer have acknowledged Marc as a ‘powerhouse’ and ‘the toughest of the tough guys,’ and a foreign publication has referred to him as ‘one of the most prominent and feared lawyers in the United States.'”

Related items

10 First Amendment Experts Respond

In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation. Their comments are set out below. Following this post, I sent an e-mail to Mr. Kasowitz inviting his response.

Floyd Abrams:  The relevant body of First Amendment law that would be applied is not that of prior restraint –the Times has already published so there’s nothing to restrain any more — but cases relating to efforts to punish the publication of truthful information about matters of public interest. Those are cases that have held unconstitutional, on First Amendment grounds, statutes such as the following: barring publication of charges before a judicial panel passing on the alleged  misbehavior of judges; barring publication of the names of juveniles before juvenile courts (I argued those two cases in the Supreme Court); and barring publication of the names of rape victims. None of those cases laid down absolute rules. Neither did the most recent case in this line–the Bartnicki v. Vopper case. Taken together, however, all the cases make it extremely unlikely that the Times could constitutionally be held liable for publishing such a newsworthy story, a month before a presidential election, about a candidate for President.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle. 

Jane BambauerDonald Trump’s arguments are foreclosed by Bartnicki v. Vopper, where the Supreme Court said that the dissemination of information about a matter of public concern could not be penalized even if it was obvious that the information was originally obtained illegally. (Bartnicki involved the broadcast of a private phone conversation that was captured by third party using an illegal wiretap.) For hard cases, reasonable minds may differ about whether speech pertains to matters of public concern (e.g. Hulk Hogan’s sex tape), but the public interest in Trump’s tax records is not a hard case.

This episode also illustrates the tension between free speech and privacy, and shows why courts will tip the scales toward speech even if a generally applicable privacy law has been broken somewhere along the chain. Privacy scholars and advocates have done a very good job showing why privacy is important even if we have nothing to hide. But Donald Trump exposes the costs of privacy: sometimes those who take refuge in claims of privacy do in fact have something to hide. The Bartnicki rule lets us cheat the consequences of our own privacy rules. Privacy law may prohibit certain types of intrusions people’s private affairs, but when the intrusion has happened and produces something valuable, the public will get to reap the benefits of that transgression.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle.

Burt NeuborneThere is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for President. That’s why we have a First Amendment. Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer. Why should anyone pay taxes if the President refuses to pay his fair share? Trump’s so used to bullying people into silence that he thinks he can do it to The New York Times. Fat chance. Remember the Pentagon Papers. 

Martin RedishIf the Pentagon Papers established anything, it’s that no prior restraint can be imposed on the Times in this situation to prevent them from publishing the tax records. If no criminal action was involved in obtaining the records, it is clear that no subsequent punishment can be imposed, either.

Where there may exist some doctrinal ambiguity (flowing, I believe, from the widespread and misguided assumption that prior restraints are somehow more invidious to First Amendment interests than subsequent punishment) is if the party providing the records to the Times obtained them illegally and subsequent punishment is sought. Purely as a normative matter, I have no doubt that under no circumstances should the act of publication of the records, in and of itself, be punishable. 

However, if The Times was actively involved in a criminal conspiracy to unlawfully acquire the records in the first place, I see no First Amendment bar to criminally punishing them for those acts. The First Amendment does not shield non-communicative criminal acts. For example, one is not constitutionally immune to prosecution for battery, merely because the battery was in an effort to coerce the victim to reveal information that is subsequently punished.

Steven R. Shapiro: The voters can decide what weight to attach to any information contained in Trump’s tax returns – or the returns of any other political candidate – but there can be no serious question about the right of the Times to publish that information. The Supreme Court has clearly and repeatedly held that the First Amendment protects the right of the press to publish information on matters of public concern, and that is true even if the information was unlawfully obtained by someone who then gave it to the press.

Steven Shiffrin: Except in very rare circumstances, newspapers are legally free to publish information provided by confidential sources. A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view. The protection of such a newspaper publication is part of the central meaning and purpose of the First Amendment. The suggestion of Mr. Trump’s counsel that this publication of the New York Times is not protected by the First Amendment is both idle and ignorant.

Geoffrey StoneThis is open-and-shut. As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm. There is the question of invasion of privacy, but that tort applies only to information that is not “newsworthy.” That is hardly the case here. The First Amendment unquestionably protects the publication of Trump’s tax returns.

Nadine Strossen: The New York Times clearly has the right to publish Trump’s tax returns, and its readers have the right to read those returns, even absent Trump’s authorization.  The only authorization that is required is provided by the First Amendment, as well as multiple Supreme Court precedents.  The Court has consistently held that the First Amendment shields the publication of true information of public concern, including information that could be considered private, so long as the publisher did not act unlawfully in obtaining the information. The Court has upheld this right even when the parties who obtained the information and provided it to the publisher did act unlawfully. For example, the Court upheld the Times’ right to publish the Pentagon Papers regardless of whether Daniel Ellsberg acted unlawfully by providing these classified documents to the Times.  The Court also has upheld this principle when the information was illegally obtained from a private, non-governmental source.  As the Court explained: “[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance….One of the costs associated with participation in public affairs is an attendant loss of privacy. . . . [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

The Court has repeatedly held that the First Amendment trumps various state and federal laws that impose criminal or civil liability for publishing truthful information about matters of public concern.  Although the Court has declined to rule categorically that the First Amendment defense will always prevail, it has stressed that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.”  (emphasis supplied) This is a very demanding standard, which the Court has never found to be satisfied, even in factual situations involving more pressing privacy concerns, and less compelling public information concerns, than those involved in the current situation.

Laurence Tribe: The idea of suing The New York Times to prevent or penalize publishing Mr. Trump’s tax returns is ludicrous. Regardless of who leaked that information to The Times, the First Amendment flatly forecloses any such use of judicial power to deprive the public of truthful information, especially given its relevance to a national election. [Twitter handle: @tribelaw]

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The authors of the New York Times story were:

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FAN (First Amendment News, Special Series) Newseum Institute to Host Event on Cell Phone Privacy vs National Security Controversy

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Starting today and continuing through mid-June, I will post a special series of occasional blogs related to the Apple iPhone national security controversy and the ongoing debate surrounding it, even after the FBI gained access to the phone used by the terrorist gunman in the December shooting in San Bernardino, California.

Gene Policinski

Gene Policinski

This special series is done in conjunction with the Newseum Institute and a major program the Institute will host on June 15, 2016 in Washington, D.C.

I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.

The June 15th event will be a moot court with seven Supreme Court Justices and two counsel for each side. The focus will be on the First Amendment issues raised in the case. (See below re links to the relevant legal documents).

→ Save the Date: Wednesday, June 15, 2016 @ 2:00 p.m., Newseum, Washington, D.C. (more info forthcoming).

The Apple-FBI clash was the first significant skirmish — and probably not much more than that — of the Digital Age conflicts we’re going to see in this century around First Amendment freedoms, privacy, data aggregation and use, and even the extent of religious liberty. As much as the eventual outcome, we need to get the tone right, from the start — freedom over simple fear. –Gene Policinski

Newseum Institute Moot Court Event

It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either with cooperation from relevant parties, or through the court system when cooperation fails.Melanie Newman (spokeswoman for Justice Department, 3-28-16)

As of this date, the following people have kindly agreed to participate as Justices for a seven-member Court:

The following two lawyers have kindly agreed to serve as the counsel (2 of 4) who will argue the matter:

→ Two additional Counsel to be selected.  

Nan Mooney and I will say more about both the controversy and the upcoming event in the weeks ahead in a series of special editions of FAN. Meanwhile, below is some relevant information, which will be updated regularly.

Apple vs FBI Director James Comey

President Obama’s Statement

Congressional Hearing

Documents

Screen Shot 2016-03-17 at 10.46.11 PM

Last Court Hearing: 22 March 2016, before Judge Sheri Pym

Podcast

Video

News Stories & Op-Eds

lockediphone5c

  1. Pierre Thomas & Mike Levine, “How the FBI Cracked the iPhone Encryption and Averted a Legal Showdown With Apple,” ABC News, March 29, 2016
  2. Bruce Schneier, “Your iPhone just got less secure. Blame the FBI,” Washington Post, March 29, 2016
  3. Katie Benner & Eric Lichtblau, “U.S. Says It Has Unlocked Phone Without Help From Apple,” New York Times, March 8, 2016
  4. John Markoff, Katie Benner & Brian Chen, “Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist,” New York Times, March 17, 2016
  5. Jesse Jackson, “Apple Is on the Side of Civil Rights,” Time, March 17, 2016
  6. Katie Benner & Eric Lichtblau, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” New York Times, March 15, 2016
  7. Kim Zetter, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” Wired, March 15, 2016
  8. Alina Selyukh, “Apple On FBI iPhone Request: ‘The Founders Would Be Appalled,‘” NPR, March 15, 2016
  9. Howard Mintz, “Apple takes last shot at FBI’s case in iPhone battle,” San Jose Mercury News, March 15, 2016
  10. Russell Brandom & Colin Lecher, “Apple says the Justice Department is using the law as an ‘all-powerful magic wand‘,” The Verge, March 15, 2016
  11. Adam Segal & Alex Grigsby, “3 ways to break the Apple-FBI encryption deadlock,” Washington Post, March 14, 2016
  12. Seung Lee, “Former White House Official Says NSA Could Have Cracked Apple-FBI iPhone Already,” Newsweek, March 14, 2016
  13. Tim Bajarin, “The FBI’s Fight With Apple Could Backfire,” PC, March 14, 2016
  14. Alina Selyukh, “U.S. Attorneys Respond To Apple In Court, Call Privacy Concerns ‘A Diversion’,” NPR, March 10, 2016
  15. Dan Levine, “San Bernardino victims to oppose Apple on iPhone encryption,” Reuters, Feb. 22, 2016
  16. Apple, The FBI And iPhone Encryption: A Look At What’s At Stake,” NPR, Feb. 17, 2016
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FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

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Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

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A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

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Commentaries 

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