“Oh please, dear? For your information, the Supreme Court has roundly rejected prior restraint,” a patriotic Walter Sobchak tells a diner waitress after she implores him to keep his voice down in the 1998 film The Big Lebowski. So iconic is this pop culture reference to American jurisprudence that it was actually cited by a Texas judge in a First Amendment case (Business Insider, 9/5/14).
John Goodman as Walter Sobchak in The Big Lebowski: “Oh please, dear? For your information, the Supreme Court has roundly rejected prior restraint!” The NYT case shows his absolutism was overstated.
Yet Sobchak’s absolutism was overstated. The line is a reference to the famous Pentagon Papers case of 1971, in which the Supreme Court ruled that the federal government could not restrain the New York Times and the Washington Post ahead of time from publishing classified documents pertaining to the Vietnam War.
But the court did not strike down prior restraint outright. As attorney Floyd Abrams, who represented the Times in the case, later wrote, “A majority of the Supreme Court not only left open the possibility of prior restraints in other cases, but of criminal sanctions being imposed on the press” (New York Times, 6/9/21). Indeed, Chief Justice Warren Burger said in his dissenting opinion that the court had given the press too much power over the state:
But why should the United States government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges and appellate judges, be placed under needless pressure? After these months of deferral, the alleged “right to know” has somehow and suddenly become a right that must be vindicated instanter.
Would it have been unreasonable, since the newspaper could anticipate the government’s objections to release of secret material, to give the government an opportunity to review the entire collection and determine whether agreement could be reached on publication?
Burger outlined the road not taken by the Supreme Court: one in which news outlets could be prevented from revealing the secrets of the state until “agreement could be reached” with the government about whether it wanted its secrets revealed.
NYT under prior restraint
That’s why it rang alarm bells among First Amendment advocates when Westchester County Judge Charles Wood ruled in favor of the right-wing organization Project Veritas against the New York Times, enjoining the paper from reporting on certain documents related to the group (New York Times, 11/18/21). New York Appellate Court Judge Leonard Austin refused to lift the block while the case makes its way through appeals (Reuters, 11/22/21), and the original judge extended the order “at least until December 1, a deadline for Project Veritas to respond in writing to the Times‘ bid to end it” (Reuters, 11/23/21).
“We’re disappointed that the order remains in place, but we welcomed the opportunity to address the court directly on the serious First Amendment concerns raised by a prior restraint,” said Danielle Rhoades Ha, a Times spokesperson (New York Times, 11/23/21), who added, “No libel plaintiffs should be permitted to use their litigation as a tool to silence press coverage about them.”
James O’Keefe is perhaps most famous for tricking corporate media—including the Times—into believing he went into ACORN offices dressed in this cartoonish pimp costume, leading to the community organizing group’s demise (FAIR.org, 3/11/10).
For anyone who needs a reminder, Project Veritas is a video entrapment organization founded by right-wing activist James O’Keefe; it targets progressive organizations as well as media outlets, usually by offering deceptively edited undercover footage to suggest wrongdoing or corruption. The group has had its successes, including its 2009 hoax about the community activist group ACORN (FAIR.org, 3/11/10) that fatally hurt its reputation, even though O’Keefe ended up agreeing to pay $100,000 to a former ACORN employee for “misrepresenting him in a widely distributed video” (Guardian, 3/8/13).
O’Keefe has also faced federal charges for attempting to tamper with the phone of then-Louisiana Sen. Mary Landrieu (Washington Post, 1/27/10), and his organization got caught trying to feed a false story about Alabama senatorial candidate Roy Moore to the Washington Post (11/27/17). O’Keefe similarly attempted to embarrass NPR; as FAIR pointed out, even when its misrepresentations are exposed, Project Veritas is able to insert enough innuendo into the discourse that its fake stories do real damage (FAIR.org, 8/26/11). The group experienced a boom in conservative financial support during the Trump administration (New York Times, 5/13/21).
‘To embarrass an adversary’
The recent court order against the Times is related to its coverage (11/11/20) of the legal advice Project Veritas gets on using undercover operations to embarrass liberal politicians, organizations and activists. The article cited memos by Project Veritas lawyer Benjamin Barr, which the group maintains are protected by attorney/client privilege.
Project Veritas claimed that the Times reported on the memos, Reuters reported, “to harm and embarrass a litigation adversary”: Veritas was already suing the Times over its coverage (9/29/20) of a Veritas video that is meant to show that Minnesota Rep. Ilhan Omar committed voter fraud. While conservatives trumpeted this concocted outrage (New York Post, 9/27/20), USA Today (10/16/20) reported that there “is no actual proof of fraud or any relationship between individuals in the video and Omar or her campaign.”
The Times may, indeed, emerge victorious in the end, but the fact that it has been prohibited at least for a time from publishing journalism, and must even fight off the possibility that a right-wing activist group may be able to essentially edit and censor a story after it is published, has press advocates worried. A victory for Project Veritas in this instance would be a significant victory for the right in its campaign against freedom of the press.
Curtailing press freedom
In 2019, Politico (9/23/19) outlined a string of court rulings curtailing US press freedom, including how
the 2nd US Circuit Court of Appeals revived a lawsuit against the Times by Sarah Palin, the 2008 Republican vice presidential nominee…[who] complained that a Times editorial published in 2017 inaccurately linked her to the 2011 shooting rampage in Arizona that gravely wounded then-Rep. Gabby Giffords and killed six others.
After ordering an unusual hearing, a US District Court judge in New York accepted testimony by the Times’ editorial page editor, James Bennet, that the reference was a mistake, but the three-judge appeals court panel faulted that ruling and unanimously reinstated the suit. The appeals judges said Palin should have the right to issue subpoenas for records and demand testimony to prove her case.
Sarah Palin filed a libel lawsuit against the Times, in another case threatening press freedom.
The “case” referred to was Palin’s contention that Bennet and the Times intentionally lied about her having a connection to the shooting.
This case was part of a trend, as the next day, Judge Amos Mazzant, a federal district judge in Texas
dealt a blow to NPR by rejecting the network’s motion to throw out a $57 million lawsuit challenging its reporting about efforts by a conservative investor, Ed Butowsky, to stir up interest in the death of Seth Rich, a Democratic National Committee staffer, and the unsubstantiated possibility that he leaked Democratic emails to WikiLeaks.
Mazzant “said the NPR reports implied ‘wrongdoing’ by the investor, and were not protected by privileges for reporting on public legal filings.”
The previous year, Bruce Brown (Time, 2/5/18), the executive director of the Reporters Committee for Freedom of the Press, wrote that then-President Donald Trump’s intentions of changing libel laws to stifle journalists hostile to administration was proof that the political and legal movement against press freedom was “mobilizing.”
FAIR (3/26/21) also reported on one prominent conservative judge who had resurrected the judicial right’s animosity toward New York Times v. Sullivan, which in 1964 held that plaintiffs who are public figures must prove “actual malice” to win a libel suit.
‘Everything else is PR’
The clash between the Times and Project Veritas comes as the latter has had to fight its own battles against the government. The Committee to Protect Journalists (11/15/21) reported that the “FBI seized O’Keefe’s cellphones during a November 6 raid on his home in Mamaroneck, New York, as part of a court-ordered investigation into the theft of a diary” of President Biden’s daughter Ashley, a raid the CPJ “expressed concern” about, while also questioning Veritas‘ methods.
Without suggesting that Veritas‘ style of journalism has any value in itself, the raid on its offices is still troubling (Dissenter, 11/17/21). While it is certainly possible to imagine O’Keefe committing an actual crime in the guise of practicing journalism, on its face the search seems to be justified on the dubious equation of holding unauthorized documents with possession of stolen goods (FAIR.org, 10/6/16).
And while it’s hard to imagine a legitimate public interest in the contents of Ashley Biden’s personal diary, the entire notion of accountability journalism is based on leaked documents and information that people in power don’t want to be seen by the masses. As George Orwell probably didn’t say: “Journalism is printing what someone else does not want printed. Everything else is public relations.”
Thus the criminal investigation into Veritas‘ reporting may reflect the same effort to chill journalism that Veritas is taking part in by suing the New York Times. If the prior restraint it sought stands up, that opens the door to government agencies, businesses and powerful individuals using the courts to keep journalists from pursuing stories that could embarrass them or question their authority.
A loss by the Times would be a victory for the right, which views the free press not as a pillar of free discourse, but an organized enemy of the Republican Party, commerce and Christianity (Politico, 1/27/17). A victory for Project Veritas, which very much embodies that political movement, will give the right a new legal lever to use against journalists and keep the public in the dark.
The post Legal Wrangle Between NYT and O’Keefe Puts Press Freedom at Risk appeared first on FAIR.
This content originally appeared on FAIR and was authored by Ari Paul.
Ari Paul | Radio Free (2021-11-24T21:15:16+00:00) Legal Wrangle Between NYT and O’Keefe Puts Press Freedom at Risk. Retrieved from https://www.radiofree.org/2021/11/24/legal-wrangle-between-nyt-and-okeefe-puts-press-freedom-at-risk-2/
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