New York Times ordered by state trial judge to stop reporting, publishing on Project Veritas; appellate court prevents enforcement of prior restraint

A New York State trial judge in Westchester County ordered The New York Times to  refrain temporarily from seeking out or publishing documents related to Project Veritas, a conservative activist group, raising concern among First Amendment activists over the constitutional rights of journalists. 

Key Players 

The New York Times is a New York City-based daily newspaper with a worldwide readership. 

Project Veritas is an American far-right group founded by James O’Keefe in 2010. It routinely produces surreptitious recordings and deceptively edited videos in an effort to discredit progressive groups and the mainstream media. 

Further Details 

In 2020, Project Veritas filed a lawsuit against The Times, accusing the newspaper of defamation in its reporting on a video the conservative group produced that made unfounded claims of voter fraud in Minnesota during the 2020 presidential election. 

On Nov. 11, 2021, The Times reported on various memos written by Project Veritas’s lawyer, Benjamin Barr, that detailed tactics to conduct sting operations without breaking federal laws, like lying to government officials, as the conservative group used fake identities and hidden cameras to infiltrate target organizations. 

Another Project Veritas lawyer suggested federal authorities had leaked the memos after the FBI obtained them during a raid on O’Keefe’s house, which was related to an investigation into the potential theft of a diary belonging to Ashley Biden, daughter of President Joe Biden, The Washington Post reported. 

Project Veritas admitted to  having once had possession of the diary, but said it had been handed over to law enforcement. However, excerpts of the diary were published by National File, another right-wing outlet. Project Veritas denied having anything to do with its publication, according to The Post. 

Further, Project Veritas argued it had obtained the diary legally, saying it was received from two unidentified individuals. But the warrant used to search O’Keefe’s home suggested federal authorities believed it had been stolen, according to The Times.  

While memos published in the Nov. 11, 2021, story predate the 2020 libel suit, Project Veritas claimed The Times had breached attorney-client privilege by making them public.

On Nov. 18, 2021, Judge Charles D. Wood of the State Supreme Court (actually a trial court) in Westchester County, ordered The Times to “cease further efforts to solicit or acquire” materials prepared by Barr. Wood, a Republican who previously served on the Yonkers City Court, was elected to his current judicial position in November 2009, taking office the following January. 

Outcome

The Times condemns ruling as unconstitutional

The Times said the trial court decision prevented it from reporting and planned to oppose it in an appellate court. “This ruling is unconstitutional and sets a dangerous precedent,” stated Dean Baquet, executive editor of the newspaper. 

Theodore J. Boutrous, an attorney who represents media outlets, said the order was “ridiculous,” and despite it being temporary, “the [U.S.] Supreme Court has said even the most modest, minute-by-minute deprivations of these First Amendment rights cannot be tolerated. To go further and suggest a limit on news gathering, I’ve never heard of such a thing.” Other legal analysts cited the 1971 precedent set by the Supreme Court’s rejection of attempts by the Nixon administration to halt publication by The Times and The Post of the Pentagon Papers, a history of American involvement in Southeast Asia.

Project Veritas, on the other hand, argued the order did not amount to a significant imposition on the newspaper’s rights. 

With the order part of the pending 2020 libel lawsuit, Project Veritas had until Dec. 1, 2021, to respond in writing to The Times’s bid to end the temporary ban imposed on Nov. 18, according to Reuters. 

Wood gives more latitude, Times says it is not enough

On Dec. 13, 2021, The Times made a formal request that the order be dissolved. The next day, Wood issued a clarification that gave the paper somewhat greater leeway to report on Project Veritas, The Times reported. 

Wood wrote that the previous month’s order did not prevent The Times “from receiving attorney-client privileged material” from anyone Project Veritas had waived the privilege for or from publishing “such information and material” it had obtained that way. 

Wood also specified that The Times could publish materials that became public by means independent of its reporting, and that it was permitted to interview Project Veritas lawyers. 

Danielle Rhoades Ha, a spokesperson for The Times, said, “While these changes are welcome, we continue to believe that the order is an unconstitutional prior restraint that should be dissolved.”

Wood rules Times must surrender Project Veritas memos

On Dec. 23, 2021, Wood reiterated his order, ruling that The Times must turn over physical copies of the memos it had and destroy electronic versions, The Associated Press reported. 

Wood justified the ruling, writing that “steadfast fidelity to, and vigilance in protecting first amendment freedoms” could not infringe on the rights of attorney-client privilege. In other words, while Project Veritas’ practices might have been of public interest, its attorney-client communications were not, he said. 

“This ruling should raise alarms not just for advocates of press freedoms but for anyone concerned about the dangers of government overreach into what the public can and cannot know,” A.G. Sulzberger, publisher of The Times, said in a statement the following day. 

“It’s an egregious, unprecedented intrusion on news gathering and the news gathering process,” said Boutrous. “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.”

Meanwhile, Project Veritas lawyer Elizabeth Locke celebrated the ruling as “a victory for the First Amendment for all journalists and affirms the sanctity of the attorney-client relationship.”

New York appeals court places hold on prior restraint

On Feb. 10, 2022, a New York state appeals court, the Appellate Division in Brooklyn, temporarily overturned Wood’s order, Reuters reported. 

The appeals court said that Wood’s order would not be enforced until a formal appeal could be heard, and in the meantime, The Times was not obligated to destroy or return any copies of legal memos written by Project Veritas. 

“We’re pleased with today’s decision to stop the enforcement of prior restraint while the case is being appealed, and we look forward to explaining our position in the appeal,” said Danielle Rhoades Ha, a spokesperson for The Times. 

“The use of prior restraint to prohibit news gathering and block the publication of newsworthy journalism is unconstitutional. No libel plaintiffs should be permitted to use their litigation as a tool to silence press coverage about them,” she continued. 

Addressing the decision, Locke stated, “We are pleased that the Appellate Division denied The Times’s overreaching request to vacate the order,” adding that she was “confident” that the appeals court would affirm “that The Times violated Veritas’s substantial rights by acquiring and publishing attorney-client privileged materials in the midst of ongoing litigation.”

In a phone interview with The Times, 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.”

Another Project Veritas spokesperson said,​ “The New York Times improperly published documents that were protected by privilege. We are confident that the Court will continue to recognize this fundamental fact,” Axios reported. 

Project Veritas targets The Times

In early March 2022, Project Veritas released two undercover videos showing Matthew Rosenberg, a Pulitzer Prize-winning reporter for The Times, disparaging fellow colleagues and members of the news media, CNN reported. According to Politico, Rosenberg said that the media overhyped the Jan. 6 Capitol attacks and mocked colleagues who said they were traumatized, referring to younger reporters as “woke.” 

While Rosenberg’s words caused tension among staff, executive editor Dean Baquet, who criticized Rosenberg’s inflammatory comments, said Project Veritas was trying to “make our heads explode” and divide The Times.