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):
A.G. Sulzberger says NYT will appeal immediately: "In defiance of law settled in the Pentagon Papers case, 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." https://t.co/pW1G6iqylt
— Caleb â€œCalâ€ Pershan (@calaesthetic) December 24, 2021
I would be amazed if, on appeal, this blatant prior restraint is not tossed out as a violation of the 1st Amendment.