United States v. Dickey, 268 U.S. 378 (1925)

Author: Justice Sutherland

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United States v. Dickey, 268 U.S. 378 (1925)

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

An indictment was returned in the court below charging defendants in error, as owner-editor and managing editor of several newspapers published at Kansas City, Missouri, with printing and publishing therein parts of certain designated federal income tax returns, showing the names of the taxpayers and the amounts of their income taxes. Demurrers were interposed to the indictment upon the ground that the facts set forth were not sufficient in law to charge any crime against the defendants, because the information so published was open to public inspection, constituted a public record available to the general public, and, consequently, was proper matter for news publication, and that, if any statute attempted to forbid or penalize such publication, it contravened the First Amendment to the federal Constitution, which prohibits Congress from making any law abridging the freedom of speech or of the press. The court below sustained the demurrers and dismissed the indictment. 3 F.2d 190.

The indictment is drawn under that part of § 1018 of the Revenue Act of June 2, 1924, c. 234, 43 Stat. 253, 344-346, which reenacts R.S. § 3167, copied in the margin.* Section 257(b) of the same Act, 43 Stat. 293, provides:

The Commissioner shall as soon as practicable in each year cause to be prepared and made available to public inspection in such manner as he may determine, in the office of the collector in each internal revenue district and in such other places as he may determine, lists containing the name and the post office address of each person making an income tax return in such district, together with the amount of the income tax paid by such person.

The prohibition against publication contained in § 3167, it will be seen, is not absolute, but subject to possible qualification by other provisions of law. The language is that it shall be unlawful to print or publish in any manner "not provided by law" any income return or any part thereof, etc. On behalf of defendants in error, it is contended that § 257(b) effects such a qualification. To this the government replies that the extent to which that provision goes is to authorize the Commissioner of Internal Revenue to make available for public inspection lists showing names of taxpayers and amounts of taxes paid by them, and that this falls short of authorizing the printing and publishing of the information contained in the lists.

Something is said in the briefs, and was said at the bar, as to the wisdom, on the one hand, of secrecy, and, on the other hand, of publicity, in respect of tax returns. But that is a matter addressed to the discretion of the lawmaking department, with which the courts are not concerned so long as no constitutional right or privilege of the taxpayer is invaded, and there is no contention that there is any such invasion here, whichever view may be adopted. The problem therefore is primarily one of statutory construction, the disposition of which will determine whether the constitutional question as to the freedom of the press needs to be considered. For the purposes of the inquiry, we assume the power of Congress to forbid or to allow such publication as in the judgment of that body the public interest may require.

The Commissioner is directed to make the lists of taxpayers and amounts paid available for public inspection in the office of the collector and elsewhere as he may determine. His discretion in that respect is limited only by his own sense of what is wise and expedient . And the inquiry at once suggests itself: to what end is this discretion, so vested in him, to be exercised? The obvious answer is: to the end that the names and addresses of the taxpayers and the amounts paid by them may be generally known. To the extent of the information authorized to be put into the lists, this is the manifest policy of the statute, with which the application of § 3167 to the present case, it fairly may be argued, will be out of harmony. Whatever one’s opinion may be in respect of its wisdom, the policy having been adopted as an aid to the enforcement of the revenue laws or to the accomplishment of some other object deemed important, it is not easy to conclude that Congress nevertheless intended to exclude and severely to penalize the effective form of secondary publicity now under consideration. Information, which everybody is at liberty to acquire and the acquisition of which Congress seemed especially desirous of facilitating, in the absence of some clear and positive provision to the contrary, cannot be regarded otherwise than as public property, to be passed on to others as freely as the possessors of it may choose. The contrary view requires a very dry and literal reading of the statute quite inconsistent with its legislative history and the known and declared objects of its framers.

Prior to the adoption of the Sixteenth Amendment, the policy in respect of tax publicity, as evidenced by congressional legislation, had not been uniform. Generally, the earlier acts had been liberal, and the later ones restrictive, in character. Section 3167 R.S. first appeared in substantially its present form in the Act of August 27, 1894, § 34, c. 349, 28 Stat. 509, 557. It was reenacted by the Revenue Acts of 1913, 1916, 1919, and 1921, and by the existing Act of 1924. The Act of 1913, c. 16, 38 Stat. 177, provided that tax returns should be open to inspection only upon order of the President, but allowed state officers under certain conditions to have access to the returns showing the names and income of corporations, etc. The Act of 1919, § 257, c. 18, 40 Stat. 1086, in addition to this, allowed stockholders of any corporation to examine its returns upon conditions therein stated. That act further provided (p. 1087) that the Commissioner should cause to be prepared and made available to public inspection, etc., "lists containing the names and the post office addresses of all individuals making income tax returns in such district," and this was expanded by the present law, § 257(b), Act of 1924, to include the amount of the income tax paid.

It is significant that, while these progressively liberal publicity amendments were being made, § 3167 -- to the general rule of which they were in terms opposed -- was carried along by reenactment without change, plainly indicating that, in the opinion of Congress, by the application of the qualifying clause "not provided by law," the scope of the general rule against publication would become automatically narrowed to the extent of the liberalizing exceptions. The congressional proceedings and debates and the reports of the conferees on the disagreeing votes of the two Houses, which we have examined but think it unnecessary to review, strongly confirm our conclusion that Congress, understanding that this limitation would apply, intended to open the information contained in the lists to full publicity.

As a result, we hold that, to the extent provided by § 257(b), Congress meant to abandon the policy of secrecy altogether, and to exclude from the operation of § 3167 all forms of publicity, including that here in question.

Judgment affirmed.

MR. JUSTICE STONE took no part in the consideration or decision of this case.


Sec. 3167. It shall be unlawful for any collector, deputy collector, agent, clerk, or other officer or employee of the United States to divulge or to make known in any manner whatever not provided by law to any person the operations, style of work, or apparatus of any manufacturer or producer visited by him in the discharge of his official duties, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law, and it shall be unlawful for any person to print or publish in any manner whatever not provided by law any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return, and any offense against the foregoing provision shall be a misdemeanor, and be punished by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both at the discretion of the court, and if the offender be an officer or employee of the United States, he shall be dismissed from office or discharged from employment.


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Chicago: Sutherland, "Sutherland, J., Lead Opinion," United States v. Dickey, 268 U.S. 378 (1925) in 268 U.S. 378 268 U.S. 385–Joint_268 U.S. 388. Original Sources, accessed March 25, 2023, http://www.originalsources.com/Document.aspx?DocID=LKSGAA61546LZ8J.

MLA: Sutherland. "Sutherland, J., Lead Opinion." United States v. Dickey, 268 U.S. 378 (1925), in 268 U.S. 378, pp. 268 U.S. 385–Joint_268 U.S. 388. Original Sources. 25 Mar. 2023. http://www.originalsources.com/Document.aspx?DocID=LKSGAA61546LZ8J.

Harvard: Sutherland, 'Sutherland, J., Lead Opinion' in United States v. Dickey, 268 U.S. 378 (1925). cited in 1925, 268 U.S. 378, pp.268 U.S. 385–Joint_268 U.S. 388. Original Sources, retrieved 25 March 2023, from http://www.originalsources.com/Document.aspx?DocID=LKSGAA61546LZ8J.