ProPublica, the nonprofit news organization that recently published what it said was the tax information of the 25 richest Americans, is now out with the tax information of a candidate for Manhattan district attorney, "Tali Farhadian Weinstein, who is married to hedge fund manager Boaz Weinstein."
"The Weinsteins are among thousands of wealthy people whose tax return data ProPublica has obtained," the article says.
This struck me as interesting as it identifies a class of "thousands of wealthy people" who are less wealthy than the 25 richest Americans and whose tax information has been leaked to ProPublica but not yet published, at least other than the Weinsteins. "ProPublica is not disclosing how it obtained the data, which was given to us in raw form," the first article said. A sidebar says, "We do not know the identity of our source," and that "We have considered the possibility that information we have received could have come from a state actor hostile to American interests." The sidebar contends further that the federal law that makes it a crime to disclose tax return information would be unconstitutional "if applied to bar or sanction publication of a story in the public interest when the news organization did not itself remove the information from the control of the IRS or solicit anyone else to do so — as we did not."
The opportunity is for a lawyer for someone in the "thousands of wealthy people" group but not in the "25 richest group" to seek a court order barring ProPublica from publishing the information. If a court wants to strike down the statute—26 U.S. Code Section 7213—as a violation of the First Amendment, let the court go ahead and do it. But if not, let the court enforce the law. There is, justifiably, a high legal bar for "prior restraint," or ordering a news organization not to publish something in advance of publication. But in this situation, the legal leverage might be strongest pre-publication, as the taxpayers and the government still have an opportunity to safeguard the information.
The opportunity to test the law exists for now, but it is rapidly diminishing. As a practical matter, once information leaks from the government, it has a way of finding its way out to the public. If a court does prohibit ProPublica from publishing, the anonymous source might choose to transmit the information to some other news organization, or make it available on a website. But as a legal matter, a court order enjoining ProPublica from publishing might at least give pause to others considering making public the tax information of wealthy individuals.
I know and respect some of the ProPublica executives (whose organization, it might be mentioned, is a tax-exempt nonprofit that provides its donors with tax deductions). But I also know and respect some wealthy people who are outraged that the government has failed to keep their tax information private and that a tax-exempt news organization is publishing the data.
Similar laws protect health information. Once it's okay to publish rich people's tax returns, what about their medical records? Doubtless some publisher would be able to find a "public interest" justification in showing that rich people get better, or at least more, health care than poor people.
Any wealthy individual who puts this particular question to a legal test would be performing a public service for the privacy of all taxpayers. The First Amendment is pretty clear—"Congress shall make no law." But that surely doesn't permit burglary for the purpose of newsgathering. Not that ProPublica committed burglary in this case, but they may have something similar to stolen property in their hands. Sorting this one out is a matter for the courts—or it will be, if the right plaintiff steps up.