Project Veritas is at the vortex of two cases that threaten the First Amendment

James O’Keefe of Project Veritas. Photo (cc) 2020 by Gage Skidmore.

A pair of legal battles involving Project Veritas, a right-wing activist group known for recording its victims on hidden camera and then deceptively editing what they said, have raised a couple of dicey First Amendment issues.

The first involves FBI raids against James O’Keefe, the founder of Project Veritas, as well as against his associates. The raids were connected to the alleged theft of a diary kept by President Biden’s daughter Ashley, even though Veritas did not publish anything from the diary and ended up turning it over to law enforcement.

Become a member of Media Nation for just $5 a month! Members receive a weekly newsletter with exclusive early content. Just click here.

As Josh Gerstein writes in Politico, the raids “are prompting alarm from some First Amendment advocates, who contend that prosecutors appear to have run roughshod over Justice Department media policies and a federal law protecting journalists.” He quotes longtime First Amendment advocate Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, as saying:

This is just beyond belief. I’m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

Maybe, maybe not. Project Veritas is entitled to the protections afforded to any journalistic organization, no matter how sleazy. The question, as Gerstein observes, is whether Veritas did anything illegal in obtaining the diary.

For instance, Daniel Ellsberg, Chelsea Manning and Edward Snowden all broke the law in obtaining secret documents, and they all paid a high price for their actions. The news organizations that published those documents, though, were not prosecuted because there was no evidence they had participated in those crimes. (Julian Assange of Wikileaks is a special case. Source or publisher? Passive recipient or active participant in the theft of classified information? I’ll leave those questions aside for today.)

What we don’t know about the Project Veritas case is whether the government is claiming that O’Keefe and his crew were participants in the theft of the diary. If that’s what they’re charged with, then the First Amendment doesn’t come into play — and I suspect that’s what we’re going to find out. Absent such a claim, though, the actions of the FBI would indeed represent a grave threat to freedom of the press.

The second, and more serious, case involves a libel suit that Project Veritas filed against The New York Times. In a proceeding not directly related to the libel claim, Veritas argued that documents the Times published violated the group’s right to attorney-client privilege. That led to an extraordinary order, reported by Michael D. Grynbaum in the Times:

On Thursday, the trial court judge, Charles D. Wood of State Supreme Court in Westchester County, ordered that The Times “immediately sequester, protect and refrain” from disseminating any of the materials prepared by the Project Veritas lawyer. Furthermore, Justice Wood instructed The Times to “cease further efforts to solicit or acquire” those materials, effectively preventing the newspaper from reporting on the matter.

This is censorship — prior restraint. I’m sure Judge Wood has a law degree, but anyone who’s taken an undergraduate First Amendment course knows this is unconstitutional. Under the Near v. Minnesota standard, the government may not engage in prior restraint except in a few narrowly drawn instances: incitement to violence, serious breaches of national security and obscenity. By contrast, the reasons for restraining the Times in the Project Veritas case are trivial. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, put it this way:

This is the first prior restraint entered against the New York Times since the Pentagon Papers, and it is an outrageous affront to the First Amendment.

Prior restraints — which are orders not to publish — are among the most serious threats to press freedom. The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.

Two cases, two very different sets of facts. As I said, we’ll have to wait and see on the first case, which might prove to be no big deal. The second case, though, strikes me as a reflection of the low esteem in which the media are held these days. A protection that has allowed news organizations to publish secret government documents as long as they don’t put the country at risk is now being flouted by a state judge for the flimsiest of reasons.

Danny Schechter’s legacy and the passion of Julian Assange

Danny Schechter in Almaty, Kazakhstan. Photo (cc) 2009 by Dan Kennedy.

Previously published at WGBHNews.org.

The news was disorienting: WikiLeaks founder Julian Assange, whose alleged misdeeds range from sexual assault to acting as a Russian intelligence asset, would be honored with an award named after the late Danny Schechter, one of my journalistic role models.

Assange was recently charged under the Espionage Act for his part in obtaining and publishing secret U.S. documents supplied to him by Chelsea Manning, a former Army private. According to Rory O’Connor, Schechter’s longtime business partner, that is precisely why Assange has been named this year’s recipient of the Danny Schechter Global Vision Award for Journalism and Activism.

Schechter, who died four years ago, spent a long and productive career as a left-wing journalist, from his days as the WBCN “News Dissector” in Boston during the 1970s to a respected documentarian and author about issues such as apartheid, economic injustice, and media reform. Schechter was someone I probably checked in with a couple of times a year. In 2009, he and I covered a protest against internet censorship that broke out while we were attending a conference in Kazakhstan. Given all that, I wasn’t sure I was on board with O’Connor’s reasoning.

“The Assange case represents a threat not only to freedom of expression but also to the heart of American democracy itself,” O’Connor wrote. And in a retort to those who argue that Assange is not a journalist, O’Connor observed that Assange has in fact engaged in journalism of a sort: “Much of what he does, after all, involves selecting, editing, verifying and even contextualizing news material.”

Trouble is, Assange was a lot easier to defend back in 2010, when WikiLeaks and Manning were exposing American wrongdoing in the Iraq war, including looking the other way as Iraqi forces tortured prisoners. At that time, Assange appeared to be an honest exemplar of radical transparency. In those days I wrote a weekly column for The Guardian. And I argued that the Obama administration, which was reportedly looking into bringing charges against Assange on the theory that he had colluded with Manning, would be endangering First Amendment protections for mainstream news organizations.

I didn’t see then, and I don’t see now, how any news organization can be said not to have colluded with a source when it receives leaked documents. Didn’t the Times and The Washington Post collude with Daniel Ellsberg when they received the Pentagon Papers from him? Yes, there are differences. Ellsberg had finished making copies long before he began working with the Times, whereas Assange may have goaded Manning. But does that really matter?

The Obama administration, fortunately, decided to back off. But that was a long time ago. Assange, always a problematic figure, looks a lot worse today than he did then. In addition to extremely serious sexual assault charges against him and his role in Russia’s internet campaign against Hillary Clinton in the 2016 election, Assange spent years evading the authorities by holing up in the Ecuadorean embassy in London, where he reportedly degenerated into the guest from hell, paying little attention to his personal hygience and possibly even neglecting his cat.

All of which, counterintuitively, is why the Danny Schechter Award may actually make sense. President Trump has been trying to delegitimize journalism since he launched his campaign four years ago, denouncing news organizations as “the enemy of the people” and vowing to end some libel protections for the media. Seen in that light, Assange is the ideal conduit through which to undermine freedom of the press. If you don’t want to defend Assange, you may not get the chance to defend The New York Times. If investigative reporting is redefined as a criminal act, who will hold the powerful to account?

When Assange was first charged several months ago it looked like the Trump administration was deliberately avoiding the most provocative course of action. Assange was not initially charged under the Espionage Act, but rather was accused of actively helping Manning steal documents — an activity that most definitely is not protected by the First Amendment.

Even so, there were hints of what was to come. Mathew Ingram, writing at the Columbia Journalism Review, pointed out that the FBI’s affidavit described behavior on Assange’s part such as taking steps to keep his relationship with Manning secret, including the use of encrypted messaging. These days, many top news organizations actively solicit secret documents through encrypted portals. Here, for example, is The Washington Post’s. If Assange broke the law, what about the Post and all the others?

Ingram added: “The affidavit also says Assange collaborated with Manning on ‘the public release of the information’ — in other words, publishing. It goes on to allege that Assange broke the law in part by receiving classified documents without a security clearance, something investigative journalists often do.”

The threat became more ominous last month, when the Trump administration added Espionage Act charges to the case against Assange. The government has never followed through on threats to use the World War I-era law to punish news organizations for publishing classified documents, despite threats to do so after the Pentagon Papers were made public and after The New York Times reported on the George W. Bush administration’s secret (and probably illegal) domestic spying program.

Now Assange has emerged as a test case — and if he loses, it’s hard to imagine why our leading news executives would be exempt. “For good reason, press-rights advocates are far more alarmed now than they were last month when Assange was initially indicted,” wrote Margaret Sullivan, the Post’s media columnist. She added: “What’s alarming about the indictment is the way it would criminalize some of the basic functions of newsgathering and publication.”

In his essay announcing the Danny Schechter Award, O’Connor wrote, “The charges against Assange make the ultimate targets of his prosecution clear: journalists worldwide. Prosecutors are using the case against him to mask a blatantly political campaign to limit all journalists — a cornerstone of the Trump agenda often expressed by the president himself.”

Given all that, I’m not worried about Danny Schechter’s legacy being sullied. In fact, he’d probably love the idea of using an award named after him to shine a spotlight on Assange. Saints and sinners alike deserve the protection of the First Amendment — and sinners, after all, are more in need of it.

Talk about this post on Facebook.

Julian Assange, freedom of the press, and the meaning of journalism

Julian Assange. Photo (cc) 2011 by The Naked Ape.

The arrest of WikiLeaks founder Julian Assange in London raises the possibility — make that the likelihood — that he will be prosecuted in the United States for revealing military secrets provided to him by former Army private Chelsea Manning. What does this mean for freedom of the press?

As I argued in The Guardian in 2010, when it appeared that the Obama administration was prepared to bring charges against Assange, there was no practical or ethical way of drawing a distinction between WikiLeaks and mainstream news organizations such as The New York Times, The Washington Post and The Guardian, all of which have published military secrets that were leaked to them, most famously the Pentagon Papers.

The principle that U.S. officials have generally followed is that leakers such as Manning, Daniel Ellsberg, Reality Winner and, if he is arrested, Edward Snowden may be prosecuted, but journalists are left alone — even though they could at least theoretically be charged under the World War I-era Espionage Act. The government has tried to argue that WikiLeaks colluded with Manning in his theft of documents, although even then it’s hard to see how that goes beyond normal journalist-source conversations.

Of course, a lot has happened since 2010. The First Amendment would almost certainly not protect Assange if he is charged with being an agent of the Russian government in connection with the leak of Hillary Clinton’s emails in 2016. But based on what we knew as of 2010, I think this column holds up rather well.

WikiLeaks and the First Amendment

An Obama administration prosecution of Julian Assange over the embassy cable leaks would be an assault on press freedom

By Dan Kennedy | The Guardian | Dec. 16, 2010

President Obama has decided to pursue a dangerous strategy that could cause irreparable harm to freedom of the press as we know it. According to Charlie Savage of The New York Times, Attorney General Eric Holder is investigating the possibility of prosecuting WikiLeaks founder Julian Assange in connection with the 250,000 diplomatic cables stolen — according to the government — by army private Bradley Manning.

Read the rest at The Guardian. And talk about this post on Facebook.

MuckRock.com and the potential power of crowdfunding

Screen Shot 2012-12-18 at 7.58.38 PMThis interview was previously published at the Nieman Journalism Lab.

The first time I heard of Michael Morisy and MuckRock.com was in 2010, after the site was targeted by a bureaucrat working for Massachusetts Governor Deval Patrick.

It seems that MuckRock, using the state’s open records law, had obtained information about how food stamps were being used in grocery stores. The data, which did not name any individual food-stamp recipients, had been lawfully requested and lawfully obtained. But that didn’t stop said bureaucrat from threatening Morisy and his tech partner, Mitchell Kotler, with fines and even imprisonment if they refused to remove the documents from their site.

They refused. And the bureaucrat said it had all been a mistake.

Now Morisy is preparing to expand MuckRock’s mission of filing freedom-of-information requests with various government agencies and posting them online for all to see. The just-launched Freedom of the Press Foundation has identified MuckRock as one of four news organizations that will benefit from its system of crowdsourced donations. The best-known of the four is WikiLeaks.

The foundation’s board is a who’s who of media activists, including Pentagon Papers whistleblower Daniel Ellsberg, Electronic Frontier Foundation co-founder John Perry Barlow, Josh Stearns of Free Press and the journalist Glenn Greenwald, now with the Guardian.

“The Freedom of the Press Foundation can be a first step away from the edge of a cliff,” writes Dan Gillmor, author of “We the Media” and “Mediactive.” “But it needs to be recognized and used by as many people as possible, as fast as possible. And journalists, in particular, need to offer their support in every way. This is ultimately about their future, whether they recognize it or not. But it’s more fundamentally about all of us.”

What follows is a lightly edited email interview I conducted with Morisy about MuckRock, the Freedom of the Press Foundation, and what comes next.

Q: Tell me a little bit about MuckRock and its origins.

A: I’d been really frustrated that we hadn’t seen much innovation in newsgathering generated by journalistic organizations. You see lots of innovations in how stories are told, but they’ve been generated by companies like Twitter, Facebook, and Instagram — all wonderful organizations, but ones which generate news as a byproduct, and where the journalistic function is by far secondary to business considerations. My co-founder and I wanted to create a startup where creating news was a core part of the business, and where the news was both user-generated and -directed as well as verified.

Since requests on MuckRock come from — and are paid for by — our users, we are able to align our business and editorial goals almost perfectly. We don’t sell advertising, we don’t put up paywalls. We just help people investigate the issues they want to, and then share those results with the world.

We’ve know been growing as a business and as an editorial operation for three years, with a part-time news editor and two fantastic interns.

Q: What sorts of projects are you involved in today?

A: Our biggest project to date is a partnership with the Electronic Frontier Foundation (EFF) called the Drone Census, which has broken a lot of major stories around the country. We let anyone submit an agency’s information and then we follow up with a public records request. So far we’ve submitted 263 requests to state, local, and federal agencies, the vast majority of which were suggested by the public. And it’s helped shed more light on a program that police departments and drone manufacturers are very purposefully keeping quiet.

We’ve also gotten to cover some really interesting local stories, such as getting the late Boston mayor Kevin White’s FBI file and taking an inside look at the timing of a drug raid, as well as national stories.

Q: What is the nature of your relationship with the Boston Globe?

A: MuckRock was invited to be part of the Globe Lab‘s incubator program a little over a year ago. We’ve received free office space and, most important, a good mailbox to receive the dozens of responses we get back every day. It’s also given us a chance to bounce ideas back and forth with their technology and editorial teams, and we’re in the early stages of a collaborative project with them.

They also recently launched The Hive, a section focused on startups in the Boston area. Given my experience running one and my editorial background, when they were looking for someone to manage and report for that section, I was a natural fit and thrilled to be invited to cover startups in the area. It’s a dream job, and it means I now have two desks, and often wear two hats inside the same building.

Q: How did you get involved in the Freedom of the Press Foundation?

A: Trevor Timm has been our main point of contact with the EFF working on the drone project, and he’s been absolutely great to work with. He reached out to us about a week ago and said that he was working on a new venture to help crowdfund investigative journalism projects, and we were honored to be thought of. It turns out he is the executive director of the Freedom of the Press Foundation, so we got lucky to be working with the right people.

Q: Do you have a goal for how much money you’re hoping to raise through the foundation? What kinds of projects would you like to fund if you’re successful?

A: We’re kind of going into this with an open mind and a hopeful heart. Any amount raised is greatly appreciated, but this will help jumpstart several new projects similar in size and scope to the drone effort, which has had an amazing response, including nods from the New York Times and many other outlets. It may also give us the flexibility to fund important stories that maybe are not as sexy. We were really interested in funding an investigation into MBTA price jumps for the disabled, for example, but our crowdfunding efforts on Spot.us are essentially dead on arrival. Having a reserve will allow us to take gambles on stories like that without having to choose between making rent and breaking news.

WikiLeaks’ uneasy alliance with the traditional media

Why did WikiLeaks work with traditional news organizations rather than go it alone in releasing the Afghanistan war logs?

In my latest for the Guardian, I argue that WikiLeaks founder Julian Assange learned from the way he handled the Apache helicopter video earlier this year that sometimes it’s better to be Daniel Ellsberg than Ben Bradlee. And that Stephen Colbert was right.