A Colorado judge and the state attorney general’s office have backed down from an attempt to prevent The Denver Gazette from reporting on secret grand jury documents that a court employee had accidentally handed over to them.
Under settled First Amendment doctrine, the government may not engage in prior restraint except under the narrowest of circumstances — a serious breach of national security, obscenity or incitement to violence.
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.
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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.
Now that a temporary restraining order stopping President Donald Trump’s niece from publishing her tell-all book has been overturned, I want to briefly touch on why we all ought to be worried that the order was issued in the first place.
According to The Daily Beast, Hal Greenwald, a New York State judge, “ordered Mary Trump and Simon & Schuster to appear before him on July 10 — and barred them from disseminating her book,” titled “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.”
But under longstanding precedent first set forth in the Supreme Court case of Near v. Minnesota (1931), prior restraint can be invoked only if publication would result in a serious breach of national security (a hurdle the government was not able to meet even in the Pentagon Papers case), or if the material in question meets the legal definition of obscenity or would incite violence.
This is not to say that the First Amendment offers Mary Trump blanket protection. It’s very possible that she could be found to have violated a binding non-disclosure agreement, as the president argues. But in order not to run afoul of the First Amendment, legal remedies would have to come after publication.
By acting as he did, Judge Greenwald elevated a family dispute to the level of revealing the movement of troops during wartime (one of the scenarios envisioned in the Near decision) or publishing instructions on how to build a nuclear bomb (the subject of another famous court battle over prior restraint).
In 1931, the U.S. Supreme Court ruled in Near v. Minnesota that prior restraint — censorship — was permissible only to prevent serious breaches of national security, incitement to violence, and the publication of obscenity. It was Near to which the court looked in 1971 when it ruled that The New York Times and The Washington Post could resume publishing the Pentagon Papers, the government’s secret history of the Vietnam War.
Yet the rise of new doomsday technologies has put a crimp in Near. The latest example: efforts by a radical activist named Cody Wilson to publish blueprints on the internet describing how to use a 3D printer to produce an untraceable plastic gun. As I wrote for WGBH News several weeks ago, the case, based in Washington State, was reminiscent of one involving a left-wing magazine called The Progressive, which in 1979 sought to publish an article describing how to build a hydrogen bomb. In both instances, judges temporarily banned publication. The Progressive eventually published its article, and yet somehow we’re all still here.
Unfortunately U.S. District Court Judge Robert Lasnik is allowing the muzzling of Wilson to drag on, ruling on Monday that the temporary restraining order he had put in place on July 31 would not be lifted until the case has been resolved. According to The New York Times, Lasnik ruled that Wilson’s First Amendment rights “are dwarfed by the irreparable harms the states are likely to suffer if the existing restrictions are withdrawn and that, over all, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”
And yet, the Times continues, the plans Wilson wants to publish are already leaking out here and there, thus showing the futility of censorship.
Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”
It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:
No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.
The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.
If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).
But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.
And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.
As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.
Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.
We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”
But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.
The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).
What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:
No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.
The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.
The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.
But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?
Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.
The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.