Sarah Palin’s bogus libel suit would appear to be enough First Amendment excitement involving The New York Times. But there’s been another important development. A New York state judge’s ruling that the Times could not publish documents it had obtained belonging to the right-wing undercover operation Project Veritas has been stayed by a state appeals court. Michael Grynbaum reports in the Times:
In a decision made public on Thursday, the appeals court said the order would not be enforced until a formal appeal could be heard. The decision means that, for now, The Times can publish certain documents and will not have to turn over or destroy any copies of the documents in its possession.
As I wrote recently, Judge Charles D. Wood had prevented the Times from publishing the documents on the grounds that Project Veritas is in the midst of suing the Times for libel, and that the documents were protected by attorney-client privilege. But the Times has contended that it obtained the documents as a result of its reporting, not from discovery in the legal case, and Veritas has presented no evidence to the contrary — as Wood himself conceded.
Wood’s stunning overreach should have been overturned within hours, and I’m shocked that it’s taken this long. The First Amendment principle that prior restraint should only be exercised in the rarest of circumstances. That’s why the Supreme Court allowed the Times and The Washington Post to publish the Pentagon Papers despite the Nixon administration’s claim that to do so was a serious violation of national security. Wood’s decision in the Project Veritas case reads like a parody.
Here’s what the Times should do next: publish all the documents. Today. And encourage widespread copying. It’s not enough just to push back at Wood. His defiance of constitutionally guaranteed protections for the press needs to be held up to widespread condemnation.
Phil Balboni. Photo (cc) 2016 by Sylvia Stagg-Giuliano.
Phil Balboni is a journalistic legend. His latest venture is DailyChatter, a nonpartisan newsletter that covers international news. The newsletter’s staff of experienced journalists based in Europe, Asia and the United States searches for “meaning and context in this immensely complex world.”
Before creating DailyChatter, Balboni was the founder, president and CEO of GlobalPost, the highly acclaimed international news site he launched in 2008. He was also the founder and president of New England Cable News, and was vice president of news and editorial director for WCVB-TV (Channel 5) in Boston. He has been awarded almost every major honor in broadcasting, including the Peabody, Murrow and Emmy.
In our latest “What Works” podcast, Balboni talks with Ellen Clegg and me about his passion for local news as well as his hopes for a newly created professorship at the Columbia School of Journalism that was endowed in his honor.
In Quick Takes, I analyze the danger to the First Amendment posed by a New York court judge who ordered The New York Times to stop publishing confidential documents it had obtained about the notorious right-wing organization Project Veritas.
Ellen weighs in with news from Texas, where a right-wing activist named Frank Lopez Jr. is flooding the zone with disinformation about immigration, taking advantage of the void created when the local newspaper shut down.
What is New York Supreme Court Judge Charles D. Wood thinking?
On Christmas Eve, Wood issued an order forbidding The New York Times from publishing confidential documents it had obtained detailing legal advice given to Project Veritas, a right-wing organization that specializes in hidden cameras and infiltration. Moreover, Wood ruled that the Times would have to return the documents to Project Veritas and destroy any electronic copies that it held.
“In defiance of law settled in the Pentagon Papers case,” said Times publisher A.G. Sulzberger in a statement, “this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.”
The decision follows a temporary ruling Wood issued more than a month ago to stop the Times from making further use of the documents. The Times appealed that ruling, but an appellate court declined to act. (On late Tuesday, a state appeals court ruled that the Times does not have to turn over or destroy the documents in its possession, at least for now.)
Here’s some background. Last spring, Project Veritas, headed by the notorious James O’Keefe, sued the Times for libel, claiming that the Times’ reference to two Veritas videos about voter fraud as “deceptive” was false and defamatory.
Then, in an unrelated matter, the Times in November published a story following up news that federal officials were investigating Veritas’ possible involvement in stealing a diary kept by Ashley Biden, President Joe Biden’s daughter. In that story, the Times quoted from confidential documents that Veritas had received from its lawyers on how to carry out its dubious stunts while avoiding legal trouble. Those documents predated Veritas’ lawsuit against the Times by several years. The Times contends they were obtained through its reporting, not through pretrial discovery in the libel case.
And by the way, don’t be fooled by Wood’s lofty title — there are 62 supreme courts in New York State. He is, in fact, a trial-court judge, elected to that position in 2009 after serving as an aide to former state senator Nicholas Spano, a Republican who pleaded guilty to federal tax-evasion charges in 2012.
But you don’t have to have a sterling judicial pedigree to know that if the First Amendment stands for anything, it stands for the proposition that the government may not ban anyone from publishing or broadcasting. Yes, there are certain narrowly drawn exceptions; serious breaches of national security, incitement to violence and obscenity may all be censored.
Still, the rule against prior restraint is robust enough to have led the Supreme Court to allow the Times and The Washington Post to publish the Pentagon Papers, the government’s own secret history of the Vietnam War. It also led a federal judge in 1979 to agonize over a decision to prohibit The Progressive, a small left-wing publication, from publishing an article on how to build an atomic bomb.
“A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,” U.S. District Court Judge Robert Warren wrote. But, he added portentously, “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.” (Warren imposed a temporary restraining order and told The Progressive and the government to work out a compromise. That order was rendered moot when a different publication ran a similar article.)
No such agonizing over the prospect of muzzling the press is evident in Wood’s opinion. Take, for instance, his ruling that the information contained in the confidential documents the Times reported on are not a matter of “public concern.” A finding to the contrary might have opened the door to the Times’ publishing the documents despite Wood’s erroneous assertion that the attorney-client privilege is at stake.
“Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” Wood wrote. “The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half.”
This is Wood setting himself up as editor, deciding what’s newsworthy and what isn’t. The documents concerned advice from Project Veritas’ lawyers on how to avoid legal trouble when carrying out its undercover operations. Surely that’s of public concern, especially since the courts have set the threshold for newsworthiness at a very low level precisely so that they can avoid playing editor.
But the larger issue here is Wood’s breathtakingly expansive definition of what’s covered by the attorney-client privilege. It’s true, of course, that if the Times had simply reported on the contents of documents Project Veritas had turned over to the Times’ lawyers during pretrial discovery in the libel case, the judge would be justified in his outrage. But there is no evidence to contradict Sulzberger’s assertion that the documents were obtained in the normal course of reporting — as Wood concedes.
“There is nothing in the record to show how the Times obtained the privileged memoranda that belong to Project Veritas,” Wood wrote. “That information is solely within the Times’ knowledge and possession, and it has not offered any explanation beyond vaguely stating that the memoranda were obtained through its ‘newsgathering effort.’”
Wood follows that up with a weird, gratuitous suggestion that perhaps the Times obtained the documents through bribery. And then, in ruling against the Times, Wood wrote:
“The Times is perfectly free to investigate, uncover, research, interview, photograph, record, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas’ attorney-client privileged memoranda.”
In other words, the Times is not free to publish or report on the documents in question even though it claims to have obtained them in the normal course of reporting, and even though Wood admits there is no evidence to the contrary.
This is an outrage against the First Amendment. “The opinion is jaw-dropping in its constitutional illiteracy,” wrote Ruth Marcus in The Washington Post.
Added Stephen J. Adler and Bruce D. Brown of the Reporters Committee for Freedom of the Press: “The First Amendment does not tolerate the idea that speech can be censored in advance, even if it might be punished after the fact. This is because prior restraints do not just ‘chill’ speech on public affairs, they ‘freeze’ it, which can give the government and private litigants a powerful tool to hide information and to skew public debate.”
What’s worse is that Wood’s ruling provides an incentive for the target of investigative reporting to sue the news organization and then use that suit to shut down any further reporting by claiming attorney-client privilege. Theodore J. Boutrous Jr., a media lawyer whose clients include CNN, put it this way in an interview with the Times:
“It’s an egregious, unprecedented intrusion on news gathering and the news gathering process. The special danger is it allows a party suing a news organization for defamation to then get a gag order against the news organization banning any additional reporting. It’s the ultimate chilling effect.”
The Times says it plans to appeal Wood’s decision. Good luck with that. Although it presumably would take a few years, eventually the case might make its way before the U.S. Supreme Court. With a right-wing majority, the court could, if it chose, inflict incalculable damage.
We should all hope that Wood’s assault on freedom of the press is halted at the state level — and that this threat to the First Amendment fades to the obscurity it deserves.
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.
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A federal appeals court has upheld the right to secretly record police officers in the performance of their public duties, but has declined to act similarly with respect to other government officials because they have a greater expectation of privacy.
The ruling, by the First Circuit Court of Appeals, essentially strikes down the Massachusetts wiretap law, also known as Section 99, as it pertains to police officers. According to an analysis by Michael Lambert, a First Amendment lawyer with the Boston firm of Prince Lobel, “The decision means that Massachusetts journalists and citizens can, openly or secretly, record police discharging their duties in public without fear of criminal charges under the state’s wiretap law.”
The ruling came in response to two separate cases, both filed in 2016. The case involving the police was brought by a pair of civil-rights activists, K. Eric Martin and René Pérez. The broader case was brought by Project Veritas, a right-wing organization known for making undercover recordings of liberal targets and often editing them deceptively. (For instance, see this backgrounder assembled by the American Federation of Teachers.)
The appeals court upheld 2018 rulings by U.S. District Court Judge Patti Saris. The Dec. 15 decision, by Judge David Barron (himself a former journalist, as Lambert notes), reads in part:
We conclude that, by holding that Section 99 violates the First Amendment in criminalizing the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces and by granting declaratory relief to the Martin Plaintiffs, the District Court properly accounted for the values of both privacy and accountability within our constitutional system. We further conclude that the District Court properly rejected Project Veritas’s First Amendment overbreadth challenge, in which the organization sought to invalidate the measure in its entirety, given the substantial protection for privacy that it provides in contexts far removed from those that concern the need to hold public officials accountable.
As Lambert observes, openly recording police officers who are performing their duties has been legal in Massachusetts since 2011 regardless of whether they have given their consent. Judge Barron’s decision now legalizes secret recordings of officers as well. The issue has drawn attention not just in Massachusetts but across the country as smartphones have made it increasingly easy for citizens to document police conduct and misconduct. The Black Lives Matter movement has been fueled in part by such videos — the best known example being the police killing of George Floyd earlier this year.
Matthew Segal, legal director of the ACLU of Massachusetts, which represented Martin and Pérez, said in a statement:
The right to record the police is a critical accountability tool. Amid a nationwide reckoning with police brutality and racial injustice, the Court has affirmed the right to secretly record police performing their pubic duties.
A final wrinkle worth noting: Retired Supreme Court Justice David Souter was among the three appeals court judges who presided.
Doug Jones’ victory in Tuesday’s Alabama Senate race underscores the crucial role that journalism plays in our public discourse.
If The Washington Post’s Stephanie McCrummen, Beth Reinhard and Alice Crites hadn’t interviewed courageous women and exposed Roy Moore as a likely pedophile, the outcome of the election could have been very different. And if the Post hadn’t turned the tables on Project Veritas when it attempted a sting to discredit its reporting, the consequences for journalism would have been catastrophic.
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