With little explanation, a New York appellate court affirmed a lower court’s ruling barring the New York Times from publishing “privileged” memos belonging to Project Veritas. The newspaper previously denounced the ruling as an “unconstitutional” and “dangerous” prior restraint of the press unseen since the U.S. government tried to prevent the publication of the Pentagon Papers.
In two short sentences, New York’s Appellate Division, Second Department Judge Leonard B. Austin wrote that the Times application to modify the lower court’s order was “denied.”
“Today’s decision to allow the injunction is deeply disappointing,” the Times‘ spokesperson Danielle Rhoades Ha said in an email. “The use of prior restraint to prohibit newsgathering and block the publication of newsworthy journalism is unconstitutional. We look forward to explaining our position in court.”
It is unclear whether the Times has any further recourse to overturn the lower court’s ruling before a hearing scheduled for Tuesday, Nov. 23. The spokeswoman added that the paper is reviewing its options.
The ruling by Westchester County Supreme Court Justice Charles D. Wood followed a motion by lawyers for James O’Keefe’s organization claiming that the Times used “attorney-client privileged memoranda” from their litigation for publication. Project Veritas says that the memos in questions were disclosed over the course of their defamation lawsuit.
In a two-page order, the judge ruled the Times must “immediately sequester, protect, and refrain from further disseminating or publishing any of plaintiff Project Veritas’ privileged materials” and “shall cease further efforts to solicit or acquire plaintiff Project Veritas’ attorney-client privileged materials.”
Press freedom advocates immediately denounced the ruling as the first “prior restraint” of the press unseen in decades—notably, in a landmark case with the Times at its center.
In 1971, the watershed case of New York Times Co. v. United States established that the government must show a “grave and irreparable” danger before preventing the news media from reporting information—known legally as a prior restraint of the press.
The Times previously broke the news of the FBI searches of homes of Project Veritas staffers, including O’Keefe’s. The Reporters Committee for the Free Press recently filed a motion in a federal court asking a judge to “unseal the search warrant application, supporting affidavit, return, and any other related judicial documents filed in connection with the search warrant” for the O’Keefe raid. A legal battle over those records is unfolding separately in federal court.
Over in state court, Project Veritas’s bid to suppress the Times reporting has multiple levels of irony. The organization, known obtaining information through sting videos criticized as deceptively edited, cried foul at the Times for obtaining information, in its words, “improperly.”
On Friday, federal prosecutors wrote in a legal filing that Project Veritas cannot claim the mantle of the First Amendment because “jurisprudence draws a clear and critical distinction ‘between stealing documents and disclosing documents that someone else had stolen previously.'”
Press freedom groups find the First Amendment issues over the order against the Times more clear cut.
“I’m shocked,” ex-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, reacted to the ruling in a phone interview with Law&Crime.
The Reporters Committee for the Free Press found the prior restraint issues clear cut. So did Epner, as to the lower court judge’s original ruling.
Precedurally, Epner said, the court must justify any restraint of the press with clear findings meeting a high bar—before issuing such a decision.
That said, Epner predicted, the Times would have a tough case once the matter goes back to court.
“I also think that once it gets to the hearing on Tuesday, Project Veritas has a real colorable chance to win on the merits on this issue,” Epner said.
Project Veritas’s attorney Libby Locke framed her client’s motion to Law&Crime as nothing more complicated than the enforcement of 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,” Locke previously wrote in an email to Law&Crime.
(Screenshot via YouTube)