Court (For Now) Says NY Times Can Publish Project Veritas Documents

from the prior-restraint? dept

We've talked about the hypocrite grifters who run Project Veritas, who, even when they have legitimate concerns about attacks on their own free speech, ran to court to try to silence the NY Times. Bizarrely, a NY judge granted Project Veritas' demand for prior restraint against the NY Times falsely claiming that attorney-client material could not be published.

The NY Times appealed that ruling and now a court has... not overturned the original ruling, but for now said that the NY Times can publish the documents, saying that it will not enforce the original ruling until an appeal can be heard. This is... better than nothing, but fully overturning the original ridiculous ruling would have been much better. Because it was clearly prior restraint. But, at least for now, the prior restraint will not be enforced.

Still, the response from Project Veritas deserves separate comment, because it's just naively stupid:

In a phone interview on Thursday, Mr. O’Keefe said: “Defamation is not a First Amendment-protected right; publishing the other litigants’ attorney-client privileged documents is not a protected First Amendment right.”

While it's accurate that defamation is not protected by the 1st Amendment, he's wrong that publishing attorney-client communications is -- in most cases -- very much protected. He's fuzzing the lines here, by basically arguing that because Project Veritas is, separately, suing the NY Times, that bans the NY Times from publishing any attorney-client privileged material it obtains via standard reporting tactics.

But that fuzzing suggests something that just isn't true: that there's some exception to the 1st Amendment from publishing attorney-client materials. That's wrong. The attorney-client privilege is with respect to having to disclose certain documents to another party in litigation. If you can successfully show that the documents are privileged, they don't need to be disclosed to the other party. That's the extent of the privilege. It has no bearing whatsoever on whether or not someone else obtaining those materials through other means has a right to publish them. Of course they do and the 1st Amendment protects that.

And, I should just note, that considering Project Veritas' main method of operating is trying to obtain private documents, or record secret conversations, it is bizarre beyond belief that Project Veritas is literally claiming that private material has some sort of 1st Amendment protection. Because that seems incredibly likely to come back and bite Project Veritas at a later time. Of course, considering they're hypocritical grifters with no fundamental principles beyond "attack people with views we don't like," I guess it's not surprising that their viewpoint on free speech and the 1st Amendment shifts depending on who it's protecting.

Filed Under: 1st amendment, attorney-client privilege, james o'keefe, new york, prior restraint
Companies: ny times, project veritas

Confused Judge Grants Project Veritas' Prior Restraint Against The NY Times

from the that's-bad dept

This is so bizarre. Last month we wrote about how the incredibly hypocritical oafs at Project Veritas were, on the one hand, screaming about their own press freedoms (for potentially legitimate reasons) while simultaneously trying to get a prior restraint order against the NY Times using the famed press silencers at the censorial thuggish law firm Clare Locke. Somewhat incredibly, on Christmas Eve a New York Supreme Court judge granted the request.

At issue is that the NY Times apparently got access to some memos that Project Veritas's lawyer had sent to Project Veritas, apparently about how Project Veritas' brand of secret filming and selectively edited "journalism" might violate various laws. PV ran to court to stop the Times from publishing anything from the documents, and got a ridiculously broad order that could be read to say that the NY Times couldn't even continue reporting on PV. Incredibly, Project Veritas, whose entire genre of "reporting" revolves around obtaining information through deceit, claimed that the NY Times could be stopped under a law that allows for the "suppression of information improperly obtained." Can't see how that might come back to bite PV, now.

The NY Times rightly pointed out that this order was clearly prior restraint and unconstitutional under the 1st Amendment. The complicating factor here is that the censorial hypocrites at PV are suing the NY Times for alleged defamation, and claim that the information obtained by the NY Times reporters "relates directly" to the case at hand. The Times, on the other hand, pointed out that the information in the memos they obtained "have nothing to do with the subject matter in the underlying defamation action" and actually predate the PV video at issue in that case. More importantly, the NY Times noted (correctly!) that a news organization cannot be prevented from reporting on newsworthy info, even if that information is attorney-client privileged info, so long as they came by it via the news gathering process (i.e., not via discovery and the legal process in the lawsuit).

And, here, it's impossible that the documents were obtained via discovery because discovery hasn't even happened yet in the lawsuit.

But the judge, Charles Wood, says that Project Veritas "has met is burden of showing the subject memoranda were obtained by irregular means, if not both irregular and improper." The judge goes on a long digression about the importance of attorney-client privilege, but seems to totally miss the fact that it only matters with regards to being able to deny certain discovery requests, and that a third party news organization is simply not bound by the attorney-client privilege of a lawyer and a client if the material is obtained through their reporting.

The court then addresses the 1st Amendment issues here... by basically brushing them off and saying it's no big deal. It goes through a long discussion on prior restraint and how the Supreme Court has rejected attempts at prior restraint in the past, but then seems to think that attorney-client privilege trumps that. It's bizarre. Even more bizarre is a weird aside about how our smart phones "beep and buzz" with information the judge believes is unimportant.

In light of these principles of law, the court rejects the Times' position that Project Veritas' attorney-client communications are a matter of public concern. Undoubtedly, every media outlet believes that anything it publishes is a matter of public concern. The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half. Our smart phones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some things are not fodder for public consideration and consumption. These memoranda, and hundreds of thousands of similar attorney-client privileged documents that are in homes, offices, and businesses in every village, town, and city in this nation are only between an attorney and a client, and it does not matter one bit who the attorney and the client are. While the content of the advice is irrelevant to this court's analysis, in this case, the subject memoranda here contain typical, garden variety, basic attorney-client advice that undoubtedly is given at nearly every major media outlet in America, including between the Times and its own counsel.

A client seeking advice from its counsel simply cannot be a subject of general interest and of value and concern to the public. It is not the public's business to be privy to the legal advice that this plaintiff or any other client receives from its counsel.

So, a few things about this. First of all, simply having a judge decide on his own whether or not a document is in the public interest raises its own 1st Amendment concerns, because it's substituting the judge's opinion for the news organization's editorial decision-making process -- and seems wide open to vast abuses to suppress speech. Judge Wood's own analysis here shows what a fraught 1st Amendment path he is taking.

Furthermore, if we compare this ruling to the Pentagon Papers case, it seems to suggest that "garden variety, basic attorney-client advice" somehow can be subjected to prior restraint, whereas things that might "threaten national security" cannot be. And that... makes no sense at all. The 1st Amendment has a very narrow set of limited exceptions and "attorney-client privileged material" is not one of them.

Finally, while "typical, garden variety, basic attorney-client advice" may not be newsworthy in most cases, there absolutely are cases when they can be newsworthy and in the public interest and that includes the scenario in this very case -- where the advice raises significant legal concerns about the methods PV used to manufacture a story that received national attention and potentially had wider ramifications. But, again, the newsworthiness of that should be up to the news organization and not the state, or else you don't really have freedom of speech.

Judge Wood also seems to think (extremely incorrectly) that the 1st Amendment allows for a balancing test between the Constitution and NY state law. This is just wrong.

Here, the court's protective order does not act as impermissible prior restraint on the Times. As important as the First Amendment's protections against prior restraint is, on the present facts, the erosion of attorney-client privilege is a far more imminent concern.

Hilariously, given that this effort is to protect Project Veritas, the judge cites another case that suggests "hit and run journalism" gets less 1st Amendment protections:

'Hit and run' journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid dirver's license.

This is a very weird quote from a strange 1979 case but if you think more carefully about it, the statement makes no sense at all.

Either way, the NY Times has already said that it will be appealing this decision (confusingly for those not deeply enmeshed in these issues, NY's "Supreme Court" is effectively the district court level in the state, so its rulings can be appealed):

I would be amazed if, on appeal, this blatant prior restraint is not tossed out as a violation of the 1st Amendment.

Filed Under: 1st amendment, attorney-client privileged material, charles wood, prior restraint
Companies: ny times, project veritas

Hypocrite Grifters Project Veritas Scream About Press Freedom, Then Run To Court To Silence The NY Times

from the not-how-it-works dept

So, just yesterday we wrote about how the FBI's raid of Project Veritas's founder and a few associates was concerning from a press freedom standpoint -- and that you should be concerned even if you believe that Project Veritas are a bunch of dishonest grifters. However, beyond being a bunch of dishonest grifters -- who still deserve press freedoms -- it appears that Project Veritas are also a giant bunch of hypocrites.

All week they've been grandstanding about press freedoms... while at the same time they hired the law firm of Clare Locke -- a firm that brags about silencing the press -- to try to silence the NY Times. Incredibly, so far it has worked. Project Veritas and Clare Locke successfully got a judge in NY to issue a ridiculously broad order requiring that the NY Times delete information it had in its possession and then stop reporting on certain aspects of Project Veritas' behavior.

This is straight up prior restraint.

ORDERED that, until such time as this Court resolves the order to show cause, defendant The New York Times shall immediately sequester, protect, and refrain from further disseminating or publishing any of plaintiff Project Veritas’ privileged materials in the possession of The New York Times, or its counsel, and that The New York Times and its counsel shall cease further efforts to solicit or acquire plaintiff Project Veritas’ attorney-client privileged materials.

The prohibition on distributing materials is concerning enough, but the demand that they "cease further efforts to solicit or acquire" material about Project Veritas is literally banning reporting. That's clearly a 1st Amendment violation. Basically every lawyer that Law & Crime spoke to notes that this is blatant prior restraint.

Libby Locke from Clare Locke (who once insisted to me that anti-SLAPP laws harmed people) put out a statement that misrepresents the law to the point of being laughable:

“A prior restraint is just that—a restraint before publication. Here, The Times already published Veritas’ attorney-client privileged communications, and the interim order and more permanent relief sought are narrowly tailored to that misconduct,” Locke told Law&Crime in an email. “Moreover, even if this were a prior restraint (it is not), there are certain circumstances where the law permits a court to enjoin the publication of materials before it happens—including, for example, by a protective order in litigation between litigants to prevent the use and dissemination of attorney-client protected materials. And this is no greater restraint on speech than the myriad protective orders the Times has been subject to in other litigation proceedings.”

This statement is stunning in its own way. First, it is wrong about prior restraint (and misstates the full extent of the order). Again, Law & Crime spoke to a lawyer who knows better:

Former federal prosecutor Mitch Epner, who has consulted with media organizations on First Amendment and copyright issues and is now of counsel with Rottenberg Lipman Rich PC, told Law&Crime in a phone interview that Project Veritas’s counsel has it wrong on the meaning of prior restraint—and that’s just what this order is.

“Even though it’s only an interim order, it is clearly a prior restraint, and it strikes at the very heart of the First Amendment protection of the U.S. to publish,” Epner said in a phone interview.

As for Locke’s definition, Epner said: “It is not the way people understand the term prior restraint.”

“It is a restraint of what can be published before there has been a ruling on the merits,” he noted.

Furthermore, the rest of Locke's comments are stunning in that she more or less admits that prior restraint is fine in the second part.

But, there's a much bigger point here. This is Project Veritas demanding that a media organization not publish content that it had received. Project Veritas. An organization whose entire existence is based around trying to obtain material it's not supposed to have or by honey trapping and surreptitiously recording people. What kind of fucked up organization would try to set a precedent that could then easily be turned around and used against its own practices?

The NY Times is very, very likely to appeal, and a NY appellate court is likely to toss this out very, very quickly -- and hopefully the court provides Justice Charles Wood with a strong talking to about prior restraint and the 1st Amendment. Justice Wood should know this already -- because it's one of the most basic things about the 1st Amendment that every judge should know, but also because the NY Times told him directly in a letter filed earlier in the day.

Plaintiff’s proposed Order to Show Cause requests, among other things, that the Court enter an order directing The Times to “refrain from further disseminating or publishing” information that Project Veritas asserts, without evidence, that The Times obtained improperly. Such an order is, on its face, the paradigmatic example of an unconstitutional prior restraint. See, e.g., Alexander v. United States, 509 U.S. 544, 550 (1993) (“Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971) (vacating order “enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois” as impermissible prior restraint); Vance v. Universal Amusement Co., 445 U. S. 308, 311, 317 (1980) (per curiam) (striking down, on prior restraint grounds, Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction prohibiting future exhibition of films that had not yet been found to be obscene); Porco, 116 A.D.3d at 1266.

Before the imposition of such a draconian and disfavored restriction, The Times should have the opportunity to be heard. The Times therefore respectfully requests that the Court hold in abeyance Plaintiff’s request to enter an Order to Show Cause in order to permit The Times to file a response in opposition to Plaintiff’s request no later than November 24, 2021. As our forthcoming opposition will make clear, Plaintiff’s request is factually and legally deficient. The request lacks merit and seeks relief that the Court cannot and must not grant.

Rather than do that, Justice Wood just granted Project Veritas' blatantly censorial demands.

I still think that Project Veritas's own rights deserve protecting, and remain concerned about the FBI raid. But Project Veritas is no defender of free speech itself. It is a censorial, thuggish, grifting, hypocritical organization and everything it does should be seen through such a lens.

Filed Under: 1st amendment, freedom of the press, injunction, journalism, libby locke, prior restraint, reporting
Companies: clare locke, ny times, project veritas