The New York Times Is Protected by Freedom of the Press. So Is James O'Keefe.
The newspaper wrongly implies that press freedom is limited to "real" journalists.
A state judge yesterday issued an order that purports to constrain how The New York Times covers Project Veritas, a self-described "non-profit journalism enterprise" founded by conservative activist James O'Keefe. The Times, which is challenging the order, rightly notes that it raises serious First Amendment issues. But the paper itself seems confused about the rights guaranteed by that amendment, implying that "freedom of the press" is limited to "the news media." That interpretation is convenient for the Times, but it is not consistent with what history tells us about the original public understanding of the phrase.
Last November, Project Veritas sued the Times for defamation, citing the paper's coverage of the organization's "bombshell investigative report" on alleged voting fraud in Minnesota. According to the complaint, the Times "falsely and without any basis" described the Project Veritas report, which consisted of two videos, as "deceptive," claimed "it relied solely on 'unidentified sources,'" said "it offered no evidence of ballot harvesting," and alleged that it was part of a "coordinated disinformation campaign" aimed at distracting attention from the newspaper's coverage of then-President Donald Trump's tax returns.
Westchester County Supreme Court Judge Charles D. Wood, who is presiding over the defamation case, yesterday ordered the Times to refrain from publishing articles based on internal Project Veritas legal memos. Wood's ruling came a week after the Times published a story saying those documents "reveal the extent to which the group has worked with its lawyers to gauge how far its deceptive reporting practices can go before running afoul of federal laws."
Project Veritas suggested that a government source had leaked the documents to the Times after the FBI obtained them during a November 6 search of O'Keefe's home that was part of an investigation into the theft of a diary belonging to Ashley Biden, President Joe Biden's daughter. The FBI also searched the homes of two former Project Veritas employees, Eric Cochran and Spencer Meads. Project Veritas says it bought the diary from a third party last year but was unable to confirm its authenticity and therefore turned it over to law enforcement without publishing any of its contents. The Times denied that it had used documents seized by the FBI, saying it obtained the legal memos described in its report prior to the searches.
Project Veritas asked Wood to bar the Times from publishing any more articles based on the internal documents, describing last week's story as "a bare and vindictive attempt to harm and embarrass a litigation adversary by completely disregarding the sanctity of the attorney-client relationship." By "surreptitiously" obtaining the memos, the organization argued, the Times had "circumvented" the discovery process in the defamation case. Wood asked the Times for its response to that allegation but in the meantime instructed the paper to "immediately sequester, protect, and refrain from further disseminating or publishing any of Plaintiff Project Veritas' privileged materials."
Times Executive Editor Dean Baquet described Wood's order as a form of "prior restraint" that clearly runs afoul of the Supreme Court's First Amendment precedents. "This ruling is unconstitutional and sets a dangerous precedent," Baquet said in an emailed statement. "When a court silences journalism, it fails its citizens and undermines their right to know. The Supreme Court made that clear in the Pentagon Papers case, a landmark ruling against prior restraint blocking the publication of newsworthy journalism. That principle clearly applies here. We are seeking an immediate review of this decision."
In a story about the controversy, Times reporter Michael Grynbaum notes that "the order raised immediate concerns among First Amendment advocates, who called it a violation of basic constitutional protections for journalists." But he also suggests that Project Veritas does not deserve those protections. "Project Veritas has sought to portray itself as a journalistic organization protected by First Amendment rights afforded to the news media," he says.
To cast doubt on the organization's self-portrayal, Grynbaum quotes a November 14 press release in which the American Civil Liberties Union (ACLU) expressed concern about the search warrants that the FBI served on O'Keefe, Cochran, and Meads. Although the ACLU "criticized the Justice Department for 'invasive searches and seizures' of properties affiliated with the group," Grynbaum reports, it also said "reasonable observers might not consider their activities to be journalism at all."
Why is that relevant? It's not. In the press release that Grynbaum quotes, Brian Hauss, senior staff attorney with the ACLU's Speech, Privacy, and Technology Project, expressed distaste for Project Veritas' shady practices. But he also made it clear that, regardless of how one classifies the organization, the FBI's investigation of it raised First Amendment concerns.
"Project Veritas has engaged in disgraceful deceptions, and reasonable observers might not consider their activities to be journalism at all," Hauss said. "Nevertheless, the precedent set in this case could have serious consequences for press freedom. Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures."
Grynbaum leaves the impression that the ACLU's concern was limited to whether the FBI's searches passed muster under the Fourth Amendment. But the ACLU also warned that "the precedent set in this case could have serious consequences for press freedom," which suggests that freedom extends beyond what Grynbaum (or Hauss) might recognize as legitimate journalism.
As UCLA law professor and First Amendment scholar Eugene Volokh has shown, the idea that freedom of the press is a privilege enjoyed only by bona fide journalists, however that category is defined, is ahistorical and fundamentally mistaken. It is clear from the historical record that "freedom of the press" refers to a technology of mass communication, not to a particular profession.
In a 2012 University of Pennsylvania Law Review article, Volokh carefully considered how freedom of the press was understood when the Constitution was written, in the late 18th and early 19th centuries, when the 14th Amendment (which extended First Amendment limits to the states) was ratified, in the late 19th and early 20th centuries, and in Supreme Court decisions since the 1930s. The evidence clearly shows that the provision protects anyone who uses the printed word—and, by extension, media such as TV, radio, and the internet—to communicate with the public.
The Times is nevertheless obsessed with policing the line between real journalism (what it does) and fake journalism (what Project Veritas does). "Project Veritas has long occupied a gray area between investigative journalism and political spying," Times reporters Adam Goldman and say in the story that prompted Wood's order. The organization's "sting operations," they explain, "typically diverge from standard journalistic practice by employing people who mask their real identities or create fake ones to infiltrate target organizations."
While that observation is grist for a debate about journalistic ethics, it is constitutionally irrelevant. Goldman and Mazzetti say Project Veritas' "defense" in the case of the purloined diary "will rely in part on casting itself as a journalistic organization protected by the First Amendment." But freedom of the press is not a license to steal someone else's property, which Project Veritas denies doing, and it is not restricted to "journalistic organization[s]."
Grynbaum is wrong to suggest that Project Veritas enjoys freedom of the press only if it qualifies as "a journalistic organization protected by First Amendment rights afforded to the news media." Press freedom is "afforded" to all Americans, regardless of whether they work for an organization that everyone would recognize as part of "the news media." For the same reason, Goldman and Mazzetti are wrong to suggest that Project Veritas has to prove it is "a journalistic organization protected by the First Amendment."
The mistaken assumption that freedom of the press is restricted to professional (and ethical!) journalists was also apparent in much of the commentary about the federal case against WikiLeaks founder Julian Assange. Assange is charged with violatingto "any person not entitled to receive it." On its face, that provision criminalizes a lot of investigative journalism, since news organizations (including the Times) routinely rely on classified information in reporting on national security issues.
Assange, like O'Keefe, is widely despised by professional journalists, many of whom argued that he did not qualify for what Grynbaum calls the "First Amendment rights afforded to the news media." But the Espionage Act draws no such distinction, and neither does the First Amendment. Regardless of whether one accepts Assange's self-identification as a journalist, prosecuting him for publishing classified information poses a clear threat to freedom of the press.
Just as freedom of speech applies even to despicable people who say horrible things, freedom of the press applies to activists who publish emails that make Hillary Clinton look bad and Trump supporters who operate in "a gray area between investigative journalism and political spying." That is how constitutional rights work: They benefit people we hate as well as people we like. If the Times wants to claim freedom of the press for itself, it has to accept that the same freedom will be used by people with different methods, ideologies, and political preferences.