Reviews | Dangerous move over Times, Project Veritas, and press freedom
Half a century ago, the Supreme Court settled the question of when a court can prevent the publication of a newspaper. In 1971, the Nixon administration attempted to prevent The Times and The Washington Post from publishing classified Defense Department documents detailing the history of the Vietnam War – the so-called Pentagon Papers. Faced with an affirmed threat to the security of the nation, the Supreme Court sided with the newspapers. “Without an informed and free press there can be no enlightened people,” Judge Potter Stewart wrote in a concurring opinion.
This sentiment reflects one of the oldest and most enduring tenets of our legal system: the government can not tell the press what it can and cannot publish. This principle predates the Constitution, but so there would be no mistake, the founders of the nation included a guarantee in the Bill of Rights anyway. “Congress will not make any law,” says the First Amendment, “restricting freedom of speech or of the press.”
This is why virtually all official attempts to ban advance speaking or reporting, known as pre-restriction, are canceled. “Any system of prior expression restrictions is submitted to this court with a strong presumption against its constitutional validity,” said the Supreme Court in a 1963 case. Such restrictions are “the very prototype of the greatest threat to the values of the First Amendment, “wrote Judge Antonin Scalia a generation later.
On Friday, however, a New York trial judge broke this precedent when he issued an order barring the Times from publishing or even reporting more information it had obtained regarding Project Veritas, the group of conservative espionage that traffics hidden and fake cameras. identities to target liberal politicians and interest groups, as well as mainstream media.
The order, a very unusual and surprisingly broad injunction against a news organization, was issued by state Supreme Court Judge Charles D. Wood, who wrote that the Times’ decision to publish excerpts from Notes written by lawyers for Project Veritas “calls for court intervention to protect the integrity of the judicial process.” The move follows a similar directive released last month by Justice Wood in response to an article published by The Times and citing the memos. The Times plans to appeal the latter decision.
In seeking Judge Wood’s order, lawyers for Project Veritas acknowledged that pre-publication restrictions are rare, but argued that their case falls within a narrow exception that the law recognizes for documents that may be used in the process. part of an ongoing litigation. This exception recognizes that because the parties are obligated by the court to disclose documents, the courts should have the power to oversee how such coerced disclosures are used by the other party. The litigation here is a defamation lawsuit that Project Veritas filed against The Times in 2020, for its articles on a video the group produced about what it claimed was widespread electoral fraud in Minnesota. The video was “likely part of a coordinated disinformation effort,” the Times reported, citing analysis by researchers at Stanford University and the University of Washington.
Class lawyers also argue that the memos are protected by solicitor-client privilege and that the Times had an ethical obligation to refer them to Project Veritas, rather than publishing them. This is not the way journalism works. The Times, like any other news organization, makes ethical judgments on a daily basis about whether to divulge secret information from governments, businesses and others in the news. But the First Amendment is about leaving those ethical decisions to journalists, not the courts. The only potential exception is information so sensitive – for example, planned troop movements during a war – that its publication could pose a serious threat to American lives or to national security.
Project Veritas legal notes are not a matter of national security. In fact, without its ongoing libel lawsuit, the group would have no claim against The Times. The memos at issue have nothing to do with this lawsuit and did not reach The Times through the discovery process. Still, Project Veritas argues that their publication should be banned because the notes contain confidential information relevant to the group’s litigation strategy.
It is an absurd and deeply threatening argument for a free press. Consider the consequences: News organizations could be routinely prevented from reporting information about a person or business simply because the subject of that report decided that the information could one day be used in litigation. More alarming is the prospect that journalists could be banned even from asking questions of sources, lest someone say something that turns out to be privileged. It is not a speculative fear; in his previous order, Justice Wood banned The Times from reporting on anything covered by Project Veritas’ attorney-client privilege. In Friday’s ruling, he ordered The Times to destroy all copies of the notes he obtained and banned him from reporting on the substance of those notes. The press is free to report on matters of public interest, he wrote, but lawyers’ notes to their clients do not erase that bar.
It’s a jaw-dropping justification: Judge Wood has taken it upon himself to decide what The Times can and cannot report. This is not how the First Amendment is supposed to work.
Journalism, like democracy, thrives in an environment of transparency and freedom. No court should be able to tell the New York Times or any other news organization – or, for that matter, Project Veritas – how to conduct its reporting. Otherwise, it would prompt the subjects of any journalist to sue for frivolous libel in order to control media coverage about them. More precisely, it would reverse the values embodied by the First Amendment and hamper the functioning of the free press on which an autonomous republic depends.