No, Rachel Maddow Didn’t Commit a Felony

Well, at least Geraldo’s off the hook now.

Rachel Maddow promised a scoop and delivered a flop. She Tweeted: “BREAKING: We’ve got Trump’s tax returns.” Droves of angry anti-Trump viewers tuned in, pitchforks in hand, prepared to storm the White House and pillory the President for what must surely have been an impeachableney, treasonousoffense.

What she produced instead was a two-page Form 1040 from 2005 showing that he paid the IRS $38 million in taxes on $150 million in income, which was offset by $100 million in losses.

That’s it. No evidence of mafia ties. No Russian surprises. No evidence of tax evasion. Nothing. If anything, paying $38 million on $50 million in adjusted gross income makes a pretty good case for tax reform.

This was not one of Rachel Maddow’s better moments. She actually seemed more like the hapless Rachel Green from Friends; the only thing missing was that charmingly flustered moment of realization that everyone in the room (or country) was staring aghast at her blunder, followed by a sadly endearing quip and canned sitcom laughter. Poor Rachel. Even the Huffington Post published a “Stop Piling On” article in her defense.

Maddow’s reputation may have taken a hit, but a number of Trump supporters have alleged that she committed a felony by broadcasting the tax returns. After all, federal law deems it unlawful “to print or publish in any manner not provided by law” a tax return or information about a tax return that was disclosed in an unauthorized manner. Seems cut and dry, right?

Well, not exactly. The Supreme Court has held that the First Amendment protects media broadcasts of private content of public interest that was illegally obtained by third parties.

Specifically, Bartinicki v. Vopper held that the First Amendment immunized a radio station from prosecution for broadcasting a conversation of public interest that was illegally recorded by a third party. The Court acknowledged that the radio station probably knew the recording was illegal and therefore violated federal law, but also recognized that the radio station did not intercept or steal the recording and its contents were a matter of public concern.

The Court ultimately concluded that the law’s interest in protecting the privacy of private conversations is subordinate to the First Amendment’s interest in disseminating matters of public importance. It wrote that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” This was an extension of its holding in New York Times Co. v. Sullivan, which imposed a heavier burden of proof in defamation lawsuits filed by public figures regarding matters of public interest.

The facts of that case are analogous to Maddow’s broadcast of the President’s tax returns. Both laws prohibit the disclosure of information that was unlawfully obtained. Both parties had reason to believe the information was unlawfully obtained, but there is no reason to believe they obtained it illegally. In Maddow’s case, there is no reason to believe she or her producers stole the tax returns from the IRS or Trump’s CPA. It’s more likely thatlike the Bartnicki disclosuresomeone else broke the law and passed the information to the media outlet. The President’s tax returns arelike the Bartnicki recordingmatters of public interest. Therefore, under the Bartnicki holding, Maddow’s broadcast of Trump’s tax returns is protected by the First Amendment.

There are reasonable grounds for criticizing this ruling. Chief Justice Rehnquist argued in dissent that this holding unnecessarily harms the expectation of privacy in our conversations by removing a deterrence from broadcasting illegal recordings: “Surely ‘the interest in individual privacy’ at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations. The Court subordinates that right…to the claims of those who wish to publish the the intercepted conversations of others.” [citations omitted]

This provokes a fascinating constitutional and philosophical debate requiring the balancing of individual privacy rights against the media’s right to broadcast matters of public concern. That discussion, however, exceeds the scope of this post. Needless to say, however, Rachel Maddow may be feeling blue, but at least she won’t be wearing an orange jumpsuit anytime soon.

Ryan T. Darby practices free speech law in San Diego.

Categories: Constitutional Law, First Amendment, Free Speech, and Public Interest Law.