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Free Speech

Injunction Blocking N.Y. Times from Writing About Project Veritas' Attorney-Client Privileged Communications

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About a year ago, Project Veritas (which specializes in videos from a conservative perspective based on hidden-camera interviews) sued the New York Times for libel. The case is going forward, based on (among other things) the Times' claims that Project Veritas's videos were "deceptive" in substance. (One could separately argue that newsgathering using hidden cameras and microphones is itself inherently deceptive, though of course that's an argument that could take place with regard to such tactics used by mainstream media organizations as well.)

Then, last month, the Times published an article about how Project Veritas "worked with lawyers to gauge how far its deceptive reporting practices could go before running afoul of federal laws"; and the article quoted from attorney-client communications that the Times had somehow obtained. (The communications were also posted on the Web, but the Times then took them down.) We don't know how the Times got the communications, though a Nov. 22 filing states that "no apparent bribery or otherwise inappropriate conduct was used to obtain the memoranda for the purpose of coercing a settlement or intimidating Project Veritas."

New York state trial court Justice Charles Wood, who is presiding over the case, concluded this publication of a litigation adversary's attorney-client-privileged information was improper, and issued preliminary orders barring the Times from further using the information (I oversimplify the procedure here slightly). And just on Friday, he issued a detailed opinion reaffirming that the Times had to (1) turn over to Project Veritas all physical copies of the attorney-client memoranda written by the Project's lawyer (Benjamin Barr), (2) destroy any other copies, (3) "use best efforts to retrieve copies" of the memoranda "provided to third parties, including but not limited to, Bill Grueskin [a professor at the Columbia Journalism School]," (4) "not … use the legal memoranda … or information obtained from those documents … for any purposes whatsoever," and (5) not disseminate the memoranda.

Now the Supreme Court has never decided whether media outlets (or any other speakers) may be barred from publishing improperly leaked attorney-client-privileged information. The issue has mostly arisen when the information relates to a criminal case, and the leaks are said to jeopardize the defendant's Sixth Amendment right to a fair trial; compare State Record Co. v. State (S.C. 1998), upholding a temporary restraining order in such a case, and U.S. v. Manuel Noriega (11th Cir. 1990), temporarily upholding a temporary order along those lines (see Justices Marshall's and O'Connor's dissent from denial of cert), with Post-Newsweek Stations Orlando, Inc. v. Guetzloe (Fla. Ct. App. 2007), rejecting such an injunction in a case where no criminal prosecution (or even civil litigation) was pending. But the question can arise in civil cases as well, where the Due Process Clause is the source of the fair trial right.

When it comes to other kinds of leaks, though, the Supreme Court has not recognized any power to block the publication of leaked or otherwise improperly released information (at least so long as the publisher wasn't complicit in the initial illegal interception, theft, or leak). In the Pentagon Papers case (1971), the Court famously refused to uphold an injunction against the publication of leaked government secrets (though it didn't decide whether publishers could be criminally punished for such publication). In Florida Star v. B.J.F. (1989), the Court held that a newspaper couldn't even be held civilly liable for publishing the name of a rape victim that had been erroneously released by the police department. And in Bartnicki v. Vopper (2001), the Court held that a radio talk show host couldn't be held civilly liable for "intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue," at least where the host "did not participate in the interception, but … did know—or at least had reason to know—that the interception was unlawful." Based on that, here's my quick analysis of Justice Wood's decision:

[1.] The heart of the analysis was that the material was not on "a matter of public concern":

[T]he court rejects the Times' position that Project Veritas' attorney-client communications are a matter of public concern…. [S]ome 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 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…. [I]t is quintessentially personal, not public, in nature….

It is clear that the memoranda themselves are not a matter of public concern, and therefore, the balance tips in favor of the attorney-client privilege. That is not to say that aspects of Project Veritas and/or its journalistic methods are not of public interest. The Times is perfectly free to investigate, uncover, research, interview, photograph, record, report, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas' attorney-client privileged memoranda.

Here, the court's protective order does not act as an impermissible prior restraint on the Times. As important as the First Amendment's protection against prior restraints is, on the present facts, the erosion of the attorney-client privilege is a far more imminent concern…. What is also at stake in the dissemination of privileged information into the public domain is the privacy of the individuals mentioned or discussed therein and the importance of full and free communication between attorney and client. ["]'Hit and run' journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid driver's license" (Greenberg v CBS Inc., 69 AD2d 693, 700 (2d Dept 1979]). Steadfast fidelity to, and vigilance in protecting First Amendment freedoms cannot be permitted to abrogate the fundamental protections of attorney client privilege or the basic right of privacy…. [I]t would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of the media's nearly unfettered right to broadcast issues concerning public affairs were confused with the attempt to constitutionalize the publication of the private, privileged communication that is presented here.

Yet it seemed to me that this analysis can't be reconciled with Bartnicki v. Vopper:

  1. In both cases, the communication was on a matter of public concern when it came to its content. (In Bartnicki, this was union leaders' plans to commit a crime; here, it's investigative journalists' plans to structure their behavior to avoid committing a crime.)
  2. In both cases, the communication was generally and reasonably understood by the parties to be confidential as between them.
  3. It is generally "not the public's business to be privy to" cell phone conversations between people, whatever the subject of the conversation, just as the public generally isn't privy to attorney-client-privileged communications.

Nonetheless, in Bartnicki the court concluded the speech was protected even against subsequent liability, because

[T]he subject matter of the conversation was a matter of public concern. If the statements about the labor negotiations had been made in a public arena—during a bargaining session, for example—they would have been newsworthy. This would also be true if a third party had inadvertently overheard Bartnicki making the same statements to Kane when the two thought they were alone.

It seems to me that the same logic is applicable to the speech in Project Veritas.

[2.] The court also relied on the Times' being a "litigation adversary" of the Project:

The court finds that the attorney-client relationship between Benjamin Barr and Project Veritas has been undermined by counsel's confidential legal advice and thought processes being in the hands of a litigation adversary, and the subject of a request for public comment….

This act by the Times to obtain and publish the confidential privileged memoranda can only be deemed to have prejudiced the rights of the plaintiff by directly compromising the confidential legal advice rendered by counsel…. [T]here are a whole host of ways that the Times has gained strategic advantage in the litigation with the knowledge it gained from the memoranda, even without being able to admit them into evidence in this case. The Times' witnesses can now craft their responses to questions at a deposition using what they have learned. The Times' attorneys now have insight to formulate deposition topics and strategy based on the content of the memoranda. Indeed, in … [its article about the privileged memoranda], the Times itself noted that the memoranda "give new insight into the workings of the group at a time when it faces potential legal peril in the diary investigation—and has signaled that its defense will rely in part on casting itself as a journalistic organization protected by the First Amendment." That "insight" for the Times is unquestionably concomitant prejudice to the plaintiff….

Although the memoranda were written almost four years before the Times published them on November 11, 2021, similar themes and allegations by the Times against Project Veritas permeate the memoranda and the pleadings in this case. The Times' own reporting in the subject article confirms this: ''Project Veritas is suing The New York Times over a 2020 story about a video the group made alleging voter fraud in Minnesota. Most news organizations consult regularly with lawyers, but some of Project Veritas's questions for its legal team demonstrate an interest in using tactics that test the boundaries of legality and are outside of mainstream reporting techniques."  …

The Times' "shot across the bow" of their litigation adversary cries out for court intervention, to protect the integrity of the judicial process, and to remedy the "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" that the Times created on November 11, 2021 [the date it published the attorney-client privileged information]….

But even if the Times got an unfair advantage in this litigation because of its access to an adversary's attorney-client privileged material, and because of its publication of that material, it seems to me that this would at most justify litigation sanctions against the Times as litigant. The most extreme such litigation sanction would be in effect entering a default judgment against the Times in the underlying libel action; I don't think that would be sound, but I think it would be the limit of what could be justified under a theory that stems from Project Veritas being the Times' litigation adversary. I can't see how this can justify an injunction against the Times as publisher.

[3.] Some have also argued that the underlying New York statute, N.Y. Civil Practice Law & Rules § 3103, doesn't authorize an injunction such as Justice Wood's, and addresses only protective orders limited to documents released through coercive discovery (on the theory that, when the legal system requires a party to disclose documents to an adversary, it can attach conditions to that disclosure).

But it appears that New York courts have read § 3103 more broadly than that; see Lipin v. Bender (N.Y. 1994), where the plaintiff had taken some of defendant's attorney-client privileged papers that were left unattended at a conference room table—the court concluded that this justified an order under 3103(c), though the plaintiff's obtaining of the records had nothing to do with the use of state coercive power and the mandatory disclosure process. And the court's rationale focused on the intrusion onto privileged communications, not to misuse of discovery devices: "There is no question that plaintiff knowingly and deliberately intruded herself into plainly private communications between defendants and their attorney, and by retaining and hand-copying the documents preserved the information gleaned for maximum advantage to herself (and maximum disadvantage to defendants) in the litigation." So I think the strongest argument against Justice Wood's order is the First Amendment argument, not the internal limitations of § 3103.

In any event, we'll see what happens on appeal. An earlier emergency appeal of the initial restraining order was denied, in a one-judge order; but such a denial of an emergency appeal shouldn't, I think, preclude the New York appellate courts from reconsidering the matter afresh now that a full decision by Justice Wood is available to be normally appealed.

NEXT: My New "The Week" Article on "The Case for Empowering Americans to Vote with Their Feet"

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  1. DOJ raids Project Veritas, NYT "somehow" gets privileged documents.

    Nothing to see here. Move along

    1. I think the trial court should demand that the NYT disclose how they got this info. If it was received in digital form, the Metadata should be examined. We need to find out if this info came from the materials seized by the DOJ.
      But that probably won't happen. Immoral, unethical, illegal conduct by the DOJ when it goes after conservatives will always be excused by the modern political left.

      1. While I feel, in some ways, the same as you; I'm concerned, because: You want to protect the client-lawyer privilege, while at the same time not protect the right(s) of the press to collect information. (My concern would not apply if there were any indication that the NYT itself acted illegally re obtaining this information.)

        1. If you're concerned about "the right(s) of the press to collect information," you should be up in arms over what DOJ is doing to Project Veritas.

          1. Veritas is in trouble for crimes.

            The NYT is in trouble for protecting it's sources.

            1. Federal law enforcement to Veritas:

              For my friends everything, for my enemies the law.

              1. Good lord, the pedantry.

                The DoJ investigating for criminality is a different situation than criminal contempt for not giving up a source.

                There is no double standard in saying as a general matter sources should be protected, and crimes should be investigated.

                1. When is the last time the FBI raided the home of the editor of the Times? NYT publishes stolen ["leaked"] material all the time.

                  Veritas is an enemy to our politicized FBI and partisan DOJ so it gets criminal treatment. You agree so you don't care.

                  1. "Veritas is an enemy to our politicized FBI and partisan DOJ "

                    The bad faith here is King Kong sized (and not Kong in Skull Island but Kong in his flick vs. Godzilla).

                    Every accusation is a confession with these folks.

            2. "Veritas is in trouble for crimes.

              The NYT is in trouble for protecting it's sources."

              What crimes? Unless you have evidence of a crime, then Veritas is in trouble for publishing a powerful person's Diary.

              And the NYT protecting its sources can be a crime, or at least civil contempt. Not to mention that the FBI leaking privileged info to an opposing party is probably a bigger story than the Veritas stuff.

              1. I mean, holy assuming your conclusion, Batman.

              2. To be more accurate: PV is in trouble for having, and choosing to turn over to law enforcement rather than publishing, a powerful person's diary.

                The NYT is in trouble for defaming PV and then knowingly publishing PV's privileged documents while in the middle of litigation with them.

                1. Your comment is fair and balanced between misleading omissions and commission.

              3. Veritas decided not to publish any excerpts of the diary and tried to return it.

                1. Neither you nor I know what the DoJ is into them for, exactly. This is, in fact, why they have investigations and trials and don't leave it to Internet posters.

                  1. The govt has to have cause to get warrants. So what is the crime?
                    We went through this for 5 years in the Russia Russia Russia hoax.
                    Although the govt never did launch a "criminal" investigation. Only a counter intel operation. Thus being able to use secret warrants and 702 lookups.
                    But we are back to the question. Exactly what actions taken by PV caused a criminal investigation?

                    1. So you're assuming the warrant is false because you forgot that the Russia investigation was found *many* times to have a sufficient factual predicate.

                    2. ...except it did not, Sarcastro. If it did, lying on the subpoena affidavits would not have been a necessity.

                    3. Sarcastro, it was found to have had an initial predicate, and then continued long after that predicate fell apart, by deliberately misleading warrant applications.

                      For example, when they investigated one of Steele's sources, and reported to the court that they found him credible, but not that he was credibly telling them that the report was a steaming heap of BS.

                    4. The IG and even the Republicans in the Senate disagree with your take.

      2. I think that many of us suspect that the source of the attorney/client material was the raid conducted by the FBI involving the Biden daughter’s diary. The FBI has long leaked confidential materials to their favored media outlets, including the NYT, maybe the most frequent recipient.

        1. And when it is eventually revealed that you're wrong, you'll just continue to lie about it anyway.

          That's what you do, and that's why you're not taken seriously.

          1. More than 30 senior FBI officials were discovered by the DOJ Inspector General to have taken bribes from media employees in exchange for leaking information, including LES and classified.

            The report also stated that several of them resigned instead of accepting punishment. None were fired or faced criminal charges.

            Why you think that the FBI is beyond doubt in this case is beyond me.

            1. You got a source for that IG report? I could find nothing like what you said.

              1. Sheesh, you must not have bothered looking, and of course it wasn't reported in your media bubble. For instance:

                DOJ watchdog accuses ex-FBI official of leaking 'sensitive' information, accepting gift from media

              2. Essentially, the IG report found that sensitive information was so widely shared in the FBI, and so many agents were regularly talking with reporters even though their jobs didn't require it, that in the end it was impossible to identify WHO leaked. Leaks? Plenty of them, but if was impossible to pin any specific leak on any specific person. And although he found a large amount of very hostile to Trump communications, he couldn't prove the leaks were due to the hostility. Well, duh, because, who was the leaker?

                Which drop of water fell through which hole in the sieve?, essentially. You can't tell.

                "First, we frequently find that the universe of Department and FBI employees who had access to sensitive information that has been leaked is substantial, often involving dozens, and in some instances, more than 100 people. We recognize that this is a challenging issue, because keeping information too closely held can harm an investigation and the supervision of it. Nevertheless, we think the Department and the FBI need to consider whether there is a better way to appropriately control the dissemination of sensitive information.

                ...

                Second, although FBI policy strictly limits the employees who are authorized to speak to the media, we found that this policy appeared to be widely ignored during the period we reviewed. We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. The large number of FBI employees who were in contact with journalists during this time period impacted our ability to identify the sources of leaks."

              3. And, of course, the IG was severely handicapped by systematic destruction of evidence.

                At Least 27 Phones from Special Counsel’s Office Were Wiped before DOJ Inspector General Could Review Them

                Also, the use of burner phones by DOJ employees is becoming a bit of a problem.

              4. Brett, nothing you linked states anything like: More than 30 senior FBI officials were discovered by the DOJ Inspector General to have taken bribes from media employees in exchange for leaking information,

                So I guess get back to Googling.

                1. No, all that's been established is that the the FBI so widely shares around sensitive data, and so many agents talk with the media, that establishing that a particular leak was bought from a particular agent is essentially impossible, particularly given the routine destruction of evidence.

                  But one agents was, none the less, proven to have taken a bribe, despite the deliberate opacity of the system.

                  1. I'm no defender of the FBI, but you don't get to say 'well that may have been a lie, but they're real bad anyhow!'

                    Dude posted bullshit.

                    This argument y'all are throwing around of 'the FBI is bad, therefore they did this thing' is not even an argument.

                    You don't get to prove stuff by 'it's the kind of thing they would do.' That's the philosophy of a lynch mob.

                    1. You can go to the DOJ's IG website, and look up the reports directly, if you want. However, "I don't believe it" is not an argument, it's just childish denial.

                      There were several dozen found to have been leaking to media and receiving gifts in excess of legal limits. Three resigned (each was serious enough that the IG put out a separate report on each one), six were referred to the DOJ for with a recommendation criminal punishment (DOJ did nothing), and the rest were left to the FBI's internal policy violation process.

                      This entire thing is well documented (starting with the FISA review investigation), and your denials of reality are the true bullshit here. We know, having had the IG present proof, that there are people, senior officials, at the FBI that have a history of leaking politically and personally advantageous information to the media.
                      Now, there is a case where sensitive information comes into the hands of the FBI, and gets leaked to the media in just days. And you are trying to pretend that it is inconceivable that this suggests that FBI leaked it? Are you trying to become the personification of the "slothful induction" logical fallacy?

                    2. Neither Brett nor I found what you describe. Neither in conjunction with gifts, nor several dozen.

                    3. Now, there is a case where sensitive information comes into the hands of the FBI, and gets leaked to the media in just days.

                      No. The media already had it.

          2. I don't think there is any doubt in this case that it was the FBI or the DOJ leaked the memos.

            The stench around the FBI is getting way too much to ignore. The worst abuses of the Hoover era are being revived.

            1. This is not an argument, it's just 'I don't like the FBI so I can believe anything I want about them.'

              1. The FBI leadership echelon is as corrupt as the day is long.

                1. I don't love the FBI either, but I don't use that to make up whatever story I want and decide it's true.

    2. Once more: not only is there no evidence that the FBI leaked them, but the timing makes it incredibly unlikely.

      1. " but the timing makes it incredibly unlikely."

        How so?

        1. The publication by the NYT was too soon after the FBI raids for it to be plausible that they got the information from the FBI.

          1. Four days? If anything, the timing makes it more likely.

            1. Four days — including an intervening Sunday — for the devices to be seized, gathered, brought to the computer forensics people, imaged¹ (assuming that there's no encryption), processed, and reviewed, for the FBI to identify information of interest to the NYT, leaked to the NYT, and turned into a story. It's more likely that the devices were still sitting in their Faraday bags in a evidence storage room than that all those steps had been undertaken.


              ¹The FBI agent on the scene doesn't just turn the devices on and rummage through them, you know. The FBI has to duplicate them while preserving chain of custody before anyone even starts looking.

              1. Don't confuse "has to" and "is supposed to".

                1. Ignoring the 'more likely' is kind of conservative's (or conspiracy theorists, but am I repeating myself there) thing.

              2. OK, at what point in that process does information typically get leaked to the press?

                And of course, despite your padding list with stuff like seized, gathered, etc. The stuff you're talking about can be done in a few hours.

                1. So...the FBI ignored procedures (leaving no trace), didn't bother with any imaging, the hard drives were super easy to get into, and then the FBI leaked to the NYT.

                  I don't know too much about digital forensics, but DMN's timeline issue is a strong one.

                  1. I'm a bit curious what "traces" you think the FBI making two copies instead of one is supposed to leave.

                  2. "hard drives were super easy to get into"

                    Yes. Stuff was seized from O'Keefe's home. People generally don't protect their home devices very well.

                    1. According to O'Keefe's lawyers, the devices seized from his house were two work phones. I would be extremely surprised to learn that they were not protected with a password.

                  3. I don't know about you Sarcastro, but my home hard drives are super easy to get into. I don't encrypt then or anything. In fact, if you're lucky, you don't even need a password.

                    1. I'm sure you and O'Keefe have identical causes for concern that your enemies will extract and disseminate the contents of your hard drives.

                    2. The FBI didn't seize any hard drives from O'Keefe. They seized two phones.

                    3. My computers, both work and personal. don't let me not have a password.

                    4. Well, great, Sarcastro, and if you wanted to say that O'Keefe was inexcusably lax in his data security, I wouldn't argue with that.

                      But leaving your front door open doesn't excuse the subsequent burglary.

                    5. So, you don't encrypt your hard drive then Sarcastro...

                      And a password is not encypted....

                    6. How would the FBI break the password, AL?

                      And Brett, passwords are ubiquitous enough that digital forensics procedures would operate on that assumption as well.

                      Maybe it was the FBI, but right now that's not at all clear or likely.

                    7. Oy.... I can't tell if you're just that naive Sarcastro, or if you're gaslighting again.

                      The fact is, a standard Windows password offers very little protection if someone has physical access to the hard drive. It's quite simple to remove the hard drive from the computer, hook it up as a secondary hard drive to a second computer, and use the second computer to access all the information on the first one. You do not need a password for the first hard drive this way. It's so easy an 8 year old can do it.

                    8. Yeah, people have been playing fast and loose between the Windows password and like bitlocker.

                      But the effect is the same. It all takes time and people. Your conspiracy within the FBI keeps growing. How many people are you know up to, breaking protocol to off the record use some other machine (also off the record, natch), to immediately open the hard drive, review over it's contents for the good stuff, and then leaking to the NYT.

                      Now, it's possible that happened. But it's pretty unlikely. And certainly not proven enough for a court of law to act on it!

                    9. Just to be clear, Sarcastro: it was cell phones, not a computer. And cell phones _are_ encrypted, although the warrant authorized them to try to open the phones with FaceID.

                    10. Huh. I thought it was computers.

                      Yeah, that makes AL even more wrong.

                    11. "And cell phones _are_ encrypted,..."

                      That's not true as a blanket statement - mine isn't. It's an old android. It may be that newer ones are.

                      I did a deep dive^H^H^H^H^H 11 seconds googling for 'android encryption option' and found lots of 'how do I turn on encryption' questions, some 'why has carrier XXXXX removed the encryption option on their version of android', and discussion of whether things like the SD card are encrypted as well as internal storage. I didn't spend the time to see which releases were being discussed.

                      Dunno about Apple, they may well all be encrypted. I know Apple seems to take security seriously.

                      I would kind of expect that Mr. Project Veritas would have a newer phone and would have it encrypted, but you never know. I'm just pointing out that not all phones are necessarily encrypted.

                    12. I would kind of expect that Mr. Project Veritas would have a newer phone and would have it encrypted, but you never know. I'm just pointing out that not all phones are necessarily encrypted.

                      Fair enough.

                  4. The government is inherently, horribly inefficient and bungling. It's also amazingly efficient in targeting its enemies.

                    Forget it, Sarc, it's ConspiracyTown.

                    1. What's so surprising about the government being efficient at things it considers important, and bungling at things it considers to be a pointless distraction?

                    2. It's not terribly surprising, Brett, when there's persuasive evidence that that's what happened. But when you think the efficiency and the bungling are gyrating back in forth in harmony with your priors, there's a good chance you're bathed in conspiracy theory.

                2. OK, at what point in that process does information typically get leaked to the press?

                  Typically, no earlier than the point when someone looks at the information and identifies it as something that the press might be interested in.

              3. 1. Seized: Saturday
                2. Gathered: Also Saturday
                3. Brought to the computer forensics people: Also Saturday
                4. Imaged: "Copy-Paste"...Also Saturday. Maybe Sunday.
                4a: Assuming there's no encryption: A safe assumption for documents between a lawyer and his client that should have attorney - client privilege
                5: Processed: Monday. Maybe. Formal processing leads to a chain of custody. Something you don't want if you're leaking documents.
                6: Reviewed: Not necessary. The NYT can do the review, the FBI can just leak the entire electronic contents. You REALLY don't want formal review if you're leaking documents.

                The NYT could have the info by Monday night. More than enough time.

                7. "The FBI agent on the scene doesn't just turn the devices on and rummage through them, you know."

                They also don't typically leak the contents of their investigation, which is what appears to have happened. But...well, here they did.

                1. 4. Imaged: "Copy-Paste"...Also Saturday. Maybe Sunday.

                  This is really ignorant. Like, I get my harddrive imaged at work and it's not 'copy-paste.'

                  5: Processed: Monday. Maybe. Formal processing leads to a chain of custody. Something you don't want if you're leaking documents.

                  So then...the entire FBI is in on this? Or at least dozens of people, enough to ignore the breach in protocol?

                  The NYT can do the review, the FBI can just leak

                  Ah yes, the blind leak. Something the FBI is super known for.

                  1. Wow, I'm beginning to think you actually DO believe that Dragnet was a realistic portrayal of the FBI.

                    A reminder: This is an agency that still in 2021, uses hand written, after the fact, notes, to document what was said during interviews. Their procedures aren't designed to expose malfeasance, they're designed to make it impossible to prove!

                    You really, really need to internalize this: The FBI is systematically corrupt!

                    1. Dragnet was about the LA PD, right?

                    2. "The FBI is systematically corrupt!"

                      They believe every single business, organization, and government entity in the USA is guilty of "systematic racism" but not that the federal internal security agency might be corrupt. Not possiblle, not even a little bit.

                    3. Dragnet was about the LA PD, right?

                      Don't stop him now; he's on a roll!

                    4. Bob,

                      They believe every single business, organization, and government entity in the USA is guilty of "systematic racism" but not that the federal internal security agency might be corrupt. Not possiblle, not even a little bit.

                      First, obviously unhelpful hyperbole to say (with extra ambiguity) "they" believe every...etc. That's certainly not a leading view of any group, whatever.

                      Second, "is guilty of systemic racism" is not what anyone thinks about your local diner. Systemic racism may affect their hiring practices, etc., but "guilty" of it. Systemic is systemic and one of the problems that it doesn't require any individual business to be "guilty" of it to be affected by (or perpetuate) it. You obviously don't understand what systemic racism is.

                      Third, systemic racism is the legacy of well-known, well-document widespread government, individual, and cultural racism and discrimination in America (including slavery, Jim Crow, etc.). To reiterate, the concept doesn't even require any current government official or business owner/employee to actually be racist or intentionally discriminatory. The corruption you are talking about is a specific, intended warping of the "federal internal security agency" by which I assume you mean the FBI. These are two different things.

                      It makes about as much sense as saying: "They believe the 2020 election was stolen, but not that all life on earth evolved over millennia." I mean, I guess there is a common thread of believing two stupid things (that one thing happened that has no proof and despite the Dear Leader's own prominent appointees saying there is no proof and that another didn't happen despite every reputable scientist and all the objective scientific evidence saying it did.

                      But that's still a pretty stupid comparison. And I mean yours, Bob.

                  2. 1. "This is really ignorant. Like, I get my harddrive imaged at work and it's not 'copy-paste.'"

                    It's a simplification, but it's basically the same. Plug in standard hard drive to second hard drive. Run program. Wait 4-5 hours. Hard drive is imaged. It's not complicated for a standard home office hard drive. Like you said. "They do it at work". It doesn't require an FBI specialist. Nor excessive amounts of time.

                    2. "Or at least dozens of people, enough to ignore the breach in protocol?"

                    It really only requires 1-2 people to breach protocol, and 1-2 to ignore it. If you're making a copy, it's easy to make a "second" copy.

                    3. The FBI leaks a lot for political purposes...

                    1. Some of the even low end tools make three copies in parallel for your leaking pleasure. Imagine what duplicators regional FBI offices must have.

                2. Or they just print out the memos. Put in an envelope and deliver to their NYT contact. Every FBI office has journalist contacts.

                  Un-encrypted. Maybe labeled "Lawyer Memos" in a file or just attached to e-mails.

                  You guys are making it super hard when it isn't.

                3. 4a: Assuming there's no encryption: A safe assumption for documents between a lawyer and his client that should have attorney - client privilege

                  I wasn't talking about the documents being specially encrypted; I was talking about the devices being encrypted.

                  The only devices that I've seen reported — including by O'Keefe himself — as having been seized were phones, though I don't rule out the possibility that hard drives were seized as well. Phones are virtually always password protected, and it's hard to believe that a professional agitprop guy/journalist (whichever way one wants to look at him) wouldn't also encrypt his hard drive.

                  1. Actually it's pretty easy to believe that O'Keefe wouldn't encrypt his home hard drive.

                    Let me ask you a question. Do you encrypt YOUR home hard drives? I know I don't.

                    People who believe they are innocent rarely ever encrypt their home hard drives. They believe in the rule of law, and that encrypting them would be unnecessary and tedious.

                    1. People who believe they are innocent rarely ever encrypt their home hard drives.

                      I guess we can quibble over "rarely", but this is manifestly untrue, especially among attorneys and journalists. It may or may not be "usually", but I can't imagine it is fair to say "rarely."

                    2. Let me ask you a question. Do you encrypt YOUR home hard drives? I know I don't

                      Of course. I'm an actual lawyer rather than an armchair one. I use my laptop for actual legal work rather than armchair legal work. I don't leave it so that anyone who happens to come across it can rummage through it.

                      Of course, every MacBook has encryption built in that can be turned on when one first configures the computer, so it's not "tedious" at all. But at least they're all going to be password protected.

                    3. Simple password protection isn't encryption. You know this.

                    4. O'Keefe, let me remind you, is the lawyer's client. Do you demand that all your clients encrypt their home computer hard drives?

                    5. How many assumptions about the facts do you need to make to allow your scenario of government efficiently and secrecy?

                      Your first assumption is that a journalist, presumably with sources, keeps his work devices wide open.

                      You're working backwards from your conclusion, and it's not going well.

                    6. You make a lot of statements David, but your statements make me believe you don't actually know what encryption is.

                      Full hard drive encryption is somewhat rare. That's because every time your computer accesses a file, it is required to decrypt it. Every time your computer writes a file, it needs to re-encrypt it. Because of that, it greatly impacts the performance of the system.

                      Simple operating system password protection, which is what you seem to mention, is not hard drive encryption, and is easily bypassed by removing the hard drive from the laptop or computer, and accessing it with a secondary computer.

                    7. "Full hard drive encryption is somewhat rare. That's because every time your computer accesses a file, it is required to decrypt it. Every time your computer writes a file, it needs to re-encrypt it. Because of that, it greatly impacts the performance of the system."

                      I have no idea what proportion of people use whole disk encryption, but I think it is available for all the major operating systems (I'm open to correction, though!).

                      From the first result searching for 'performance of full drive encryption':

                      "While not directly impacting encryption, the speed of hard disks — both SSD and HDD — is impressive. In general, speed is the first thing we think of when it comes to read/write performance, whether your data is encrypted or not. You’re more likely to notice the impact of a slower drive than you are to notice whether the data is being encrypted.

                      CPU speeds, as well as the number of CPUs available on a PC, directly impacts the performance impact of encryption. Encryption can be a (very) complex mathematical calculation. As complex as it may be, though, today’s CPUs are more than capable of handling the work without breaking a digital sweat.

                      In comparison to the amount of time required to get the data on and off the disk — which is the same whether it’s encrypted or not — the additional time it takes to encrypt or decrypt that data is amazingly small."

                      That comports with my experience, and I don't generally run state of the art hardware at home.

                4. 4a: Assuming there's no encryption: A safe assumption for documents between a lawyer and his client that should have attorney - client privilege

                  Um, there's a reason you are an armchair lawyer.

                  The fact that things are protected by the attorney-client privilege is a reason in favor of encryption, not against it. It can be a violation of attorney ethics to not encrypt attorney-client privileged information, depending on circumstances. But it's almost always a good idea when feasible.

                  The rest of your reasoning has about as much quality as this point.

                  1. NOVA,

                    I'll ask you the same question I've asked others.

                    Do you encrypt all your home hard drives?

                    In terms of attorney-client privilege, in my e-mail communications with attorneys, they've hardly ever been encrypted.

                    1. What's the point of your question? The FBI didn't seize any hard drives from O'Keefe.

                    2. AL....Yes I encrypt all my hard drives. You cannot be too careful.

                    3. Sounds like that's a no on your part NOVA.

                      You don't encrypt your hard drives at home.

              4. Two separate investigations, done by FISA judges, has found over 80% of 702 lookups conducted were illegal. Meaning there was no jurisdiction to gather the information gathered. Almost all of the illegal lookups were done by Contractors working for the FBI.

                In this case, it is simple to see were the information was already known to the FBI, all that was needed to use the information was and event to get the information into the FBI hands. Thus the raids on a News Organization. Very simple to "leek" the information to the NYT once the raid has taken place. No need for all the forensic work if the FBI already knows whats on the devices.

                1. I don't know where you got your 80% number from, but inconsistent with Section 702’s “minimization” requirement is not the same as illegal.

                  And the rest is like political thriller nonsense.

              5. They probably got the documents from his email, and they had subpoena'd the contents of his email before the raid.

                I also wouldn't put it past the FBI to have installed a surveillance app on O'Keefe's phone, do you ever check out Stuart Baker's podcast?
                Phones are almost never the source of original documents, other than texts or photos, and it is most likely the documents were emailed as pdfs.

                So I think

                1. Think whatever crazy scenario you want, but that's not going to stand up in court.

                  1. Yeah, I don't think the FBI issuing a subpoena for emails when the want to snoop around is a crazy scenario.

                    According to the NY Times, which should know, the FBI issues an average of over 25000 subpoenas for emails to email hosting providers every year since 2000.

                    It's somewhat sad for someone that used to exhibit occasional concern for civil rights to become such an FBI apologist.

                    1. I'm saying what the law is.

                      You can believe what you want - you have no evidence, the court requires evidence to rebut presumption, you lose.

                      Sorry you don't like the law, but that doesn't mean I'm apologizing for the FBI.

  2. The judge used the word "incredibly" to describe the Times' use of "no apparent bribery" instead of giving explanation of how its methods were proper. The judge should order the Times to state the circumstances in detail under oath, and enter a default judgment if the answers are not provided or not satisfactory.

    And Twitter should apply the Hunter Biden precedent and block the New York Times from its platform for using possibly improperly obtained materials. Which they should have done over the reporting of Trump's tax records. Which was a good story, but based on material that was probably obtained in violation of a duty of confidentiality.

    1. You need to parse that claim correctly:
      "no apparent bribery or otherwise inappropriate conduct was used to obtain the memoranda for the purpose of coercing a settlement or intimidating Project Veritas."
      It doesn't say that no bribery or otherwise inappropriate conduct was used to obtain the memos - just that if that did happen, it wasn't for the purpose of blackmail.

    2. The judge should order the Times to state the circumstances in detail under oath, and enter a default judgment if the answers are not provided or not satisfactory.

      A default judgment for what, based on what? I think you misunderstand — like the judge, even though he recited it correctly — the burden of proof.

      And Twitter should apply the Hunter Biden precedent and block the New York Times from its platform for using possibly improperly obtained materials.

      Setting aide that Twitter later announced that this wasn't the right application of their policies, that's not "the Hunter Biden precedent" anyway. What originally ran afoul of their policies was not the NYP's "using" these materials, but posting a tweet about them. All the NYP had to do was take down that one tweet and they were free to tweet as much as they wanted.

      based on material that was probably obtained in violation of a duty of confidentiality.

      The NYT has no duty of confidentiality. It's a hacked materials policy that Twitter was applying, not a leaked materials policy.

    3. "probably "

      When most modern conservatives feel the rare need to qualify it's 'probably' the case that word is doing Herculean levels of work.

  3. Eugene has now reached the point where Project Veritas, which any sane individual knows trades entirely in disinformation, is a "conservative perspective."

    Get help prof. You're really losing it.

    1. Which any person who pays attention knows uses standard investigative journalism tactics, only against subjects most 'journalists' would avoid investigating, and avoids the usual shoddy journalistic practices of deceptive paraphrases, in favor of letting the subjects speak for themselves.

      1. "However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion."

      2. " standard investigative journalism tactics"

        Yeah, which is why most mainstream journalists have pled guilty to stuff from their tactics.

        "voids the usual shoddy journalistic practices of deceptive paraphrases, in favor of letting the subjects speak for themselves"

        Lol, you're not just assaulting the truth here, you're gang raping it.

    2. "trades entirely in disinformation"

      If true, that likely would violate several New York Times copyrights.

    3. Getting stomped by better ideas and people in the culture war for decades could warp a person . . . or maybe what we are seeing as the Volokh Conspiracy evolves toward paltry partisan polemics is revelation rather than change.

    4. I trust PV far more than NYT. They have to retract far fewer stories.

  4. Sounds like Veritas filed a bogus defamation suit specifically to keep these documents out of the public eye.

    1. You think that they filed their complaint, knowing it was meritless, because they thought that their memos would get leaked (to the Times specifically) a year later?

      1. Just like Trump's 17th dimensional chess with the vaccines.

  5. Your bullet 1 in the Bartnicki analysis confuses me. 'Structuring your behavior to avoid committing a crime' is another way of saying 'intentionally obeying the law'. That seems to be the exact opposite of "plans to commit a crime".

    1. Right. I don't think it makes any sense to say that because union leaders conspired to commit crimes, and this made their communications into "matters of public concern", that it follows that attorney-client communications on how to follow the law are similarly matters of public concern. A conspiracy to break the law is of general interest the society, but a plan to obey the law is not. To say otherwise would undermine most trade secrecy laws, at least with respect to media that want to make a business look bad.

    2. They may be different in various ways, but they are similar in that both are matters of public concern, I think. How important investigative organizations deal with legal rules is something the public can be rightly concerned about (since, among other things, it can help the public consider whether the legal rules should be tightened, or for that matter loosened).

      1. Professor Volokh,

        I see how your point of view would lead you to argue this. But it does seem a fair point that Bartnicki isn’t really as obviously on point as you suggest, and it can be argued it doesn’t really cover this situation.

      2. So if I call you (my lawyer) for advice on staying compliant with this week's interpretation of the OSHA rules or ask for advice on compliance with some new privacy law, that automatically becomes a matter of public concern? I don't see it. That would gut the right to consult your lawyer privately on any compliance issue.

        Yes, the issue of whether compliance rules should be tightened or loosened is matter of broad public concern. But so is the issue of whether laws about murder should be tightened or loosened. Yet no one would argue that the protections of attorney-client communications in specific instances should be weakened because of that broader debate.

        For the analysis above, the specific incident must be the matter of public concern. And "obeying the law" simply is not. Defining "obeying the law" as a matter of public concern sufficient to override privacy rights would create a situation where the exception swallows the rule.

        1. So if I call you (my lawyer) for advice on staying compliant with this week's interpretation of the OSHA rules or ask for advice on compliance with some new privacy law, that automatically becomes a matter of public concern? I don't see it.

          If you represent a company that itself is newsworthy, and there have been issues about employee safety in the past, the very fact that you are trying to see how close you can come to the line in terms of safety regulations can be newsworthy.

          That would gut the right to consult your lawyer privately on any compliance issue.

          But that right as phrased doesn't exist. There is an evidentiary privilege against having to reveal a-c consultations. There are ethics rules that say if a-c communications are inadvertently disclosed to opposing counsel in a case, the counsel may have to avoid as much as possible reviewing those communications. In the criminal context there are sixth amendment rights against the government obtaining a-c information. But if I learn something about your communications with your lawyer, I have no obligation to keep those secret.

          1. So when did you stop beating your wife?

              1. But note that if I were a public figure suspected of wife beating, evidence that I had asked my attorney, "How hard can I hit her without it being a crime?" would be quite newsworthy, even though I can claim i was trying not to commit a crime.

                1. Let's take this to the logical extension....

                  Hypothetically during the OJ Simpson trial, a criminal breaks into OJ's lawyer's office. The criminal steals a whole bunch of the private correspondence between OJ and his lawyers, in regards to the defense strategy. The criminal sends it anonymously to the NYT. The NYT decides to publish it.

                  Is that newsworthy? Sure. But should the NYT be allowed to publish it?

                  1. Under the First Amendment, the New York Times is allowed to publish it. If you question is, should we amend (or ignore) the constitution to change that, my answer is "no".

                  2. FYI a whole bunch of privileged defense communications WERE published during the OJ trial. Just because the leaks were oral doesn't mean they weren't privileged.

                  3. Is that newsworthy? Sure. But should the NYT be allowed to publish it?

                    1,000% yes. And regardless of whether one thinks they "should" be, they are. It's completely protected by the 1A for them to do so, given the facts as you described them.

                    A-C privilege just doesn't work the way some people here think it does. It's not like posting a physical no trespassing sign on one's property that gives the world notice that they are not permitted to enter that property, and are committing a crime if they do.

                    1. Let's take it further.

                      The prosecution then uses the published work from the NY times to directly or indirectly affect the trial. Is that an issue?

                      Let's say the prosecution find the criminal, and just declines to press charges. Is that an issue?

                    2. Do you see how the actor you’ve switched to isn’t the NYT anymore?

                    3. And that is a problem.

                      Why should the NYT rights supercede OJ's rights, in this example?

                    4. And that is a problem.

                      Why should the NYT rights supercede OJ's rights, in this example?

                      They shouldn't/don't. You're making a category error. OJ doesn't possess the right you think he does. Attorney-client privilege is not a right against private people.

        2. No one is suggesting that the fact that the advice sought was on a matter of public concern means that the communication isn't privileged. The Times still couldn't, for instance, require the production in discovery in its civil case or try to make a deposition witness produce them.

          1. Judge Wood's opinion seems to say that even if the advice sought was on a matter of public concern, it was still A-C privilege and NYT could be restrained from publishing it.

      3. Professor Volohk,

        That's a dangerous application to eliminate attorney - client privilege. Because it can be so widely applied.

        "How important investigative organizations deal with legal rules is something the public can be rightly concerned about"

        What else is important? How important oil organizations deal with legal rules? Sure. How important political organizations or campaigns deal with legal rules? Absolutely. How important criminal figures deal with legal rules? Yes!

        I am sure the public would be greatly interested in the details of OJ Simpson's legal defense, and the in depth conversations that went into it, the planning of it, and so on. Even more so before the trial was over. It would be of immense public interest.

        Does that mean that in all these cases the attorney - client privilege should be cut short?

        Can you imagine any situation of real importance where the attorney client privilege couldn't be infringed upon because of interest from the public?

  6. The NYT is obviously butthurt here and is going back to the tired old "whadda bout freedom of the press" trope they liked to use so much during the Trump years.

    I'll leave the legal argument specifics up to the first amendment gurus, but here I would rather say let them publish what they want, just hit them in the wallet later. Here a large judgement is going to have a deterrent effect and probably get paid out.

    Also, everyone knows darn well that the NYT wouldn't think twice about using any of the tactics PV use if it meant busting a Republican or Trumper. They would relish in the fact they "got" someone and engage in many rounds of self-congratulations for doing so.

    1. $10 billion judgment. That would teach the NYT a lesson.

    2. "everyone knows darn well that the NYT wouldn't think twice about using any of the tactics PV use if it meant busting a Republican or Trumper."

      Most modern conservatives find the idea of professional standards to be a foreign or odd one, so it's no surprise they can make comments like the Dane's. Note Jimmy has said here before quite openly that the ends justify the means in their political war. Every accusation is really a confession with these folks.

      1. The idea of professional standards in the media was foreign because at least in the MSM they do not exist.

      2. Media ethical standards are, at best, a myth.

        Again, why was Hunter Biden's laptop story silenced as hard as possible but Trump's tax returns trumpeted, given that one was obtained legally and the latter was very much not.

        1. Again, why was Hunter Biden's laptop story silenced as hard as possible.

          It wasn't.

          but Trump's tax returns trumpeted, given that one was obtained legally and the latter was very much not

          Yes, if you completely make up facts, you can prove almost anything.

  7. This is a poster child case for DoJ abuse of authority and lawlessness. The Feds behind it belong in prison.

    Congressional hearings next year, after the party of abuse of authority and lawlessness loses.

    1. It should happen. It won't happen. Just look at the DOJ, FBI, and CIA slime that now have their full pensions and rich positions with the mainstream press.

      1. Disaffected, delusion, desperate clingers are among my favorite culture war casualties.

      2. At least we don’t have to pretend they’re somehow different than the mafia or other criminals any more.

  8. As important as the First Amendment's protection against prior restraints is, on the present facts, the erosion of the attorney-client privilege is a far more imminent concern….

    Unless you are the president and the other side really, really, really, really wants to hurt you, their political enemy.

    Which is strange because the primary purpose of these protections is to stop the king from using the investigative power of government to harm his political enemies.

    I assume responses will attempt to flesh out the really, really, really, reallys waaaana hurt him.

    And yes he deserves it. Not the point.

    1. And yes he deserves it. Not the point.

      from the Wall Street Journal:

      In the minds of the ranting radicals of the Squad or MSNBC, dimly repeated by the president, these so-called rights—presumption of innocence, due process, trial by jury, proof of guilt beyond a reasonable doubt, etc., are not the bedrock legal protections against overweening authority the Anglo-Saxon jurisprudence has deemed them to be. In the minds of the regnant left when they find the defendant unsympathetic, they are inconveniences, fetishized excrescences of judicial process that obstruct and subvert the larger and more important objective of social justice. In this increasingly popular account on the left, they are the armor with which the capitalist white supremacists protect their hegemony. As such they can be dismissed.
      ...
      If the left’s reaction to [the Kyle Rittenhouse] case doesn’t scare you, I am afraid you don’t understand what it represents, or how rapidly and how far the poison of this subversive and illiberal dogma has already spread through a political movement and ideology we once called liberal.

      source:
      https://www.wsj.com/articles/kyle-rittenhouse-and-the-lefts-terrifying-assault-on-due-process-trial-verdict-not-guilty-11637597046

      1. Why is 'Anglo-Saxon jurisprudence' invoked? It seems pretty off-point:
        https://en.wikipedia.org/wiki/Anglo-Saxon_law

        Anyhow, I always trust my doomsaying if it starts with some nice alliterative name-calling. The sign of objectivity!

        1. Because it is the origin of American concepts of law and justice. Seems pretty obvious. What's the objection?

          1. Only in the most remote sense.

            Did you read what I linked? presumption of innocence, due process, trial by jury, proof of guilt beyond a reasonable doubt are nowhere near what that is.

            I don't know why they chose that term, but it stood out to me as odd.

        2. He just butchered "Anglo-American law" which is a common usage.

  9. I'm inclined to agree that the 1st amendment doesn't allow for this sort of injunction, but would certainly allow for a very rigorous inquiry into how the NYT came by these communications, (Which the NYT would not have any constitutional basis for refusing to cooperate with.) and sanctions if it were to involve any illegalities.

    1. I don't see it. The Times never pays for stories, and there's no evidence they ever steal documents. It's almost certainly the case that these memos were leaked, and investigating who the leaker was raises huge and legitimate reporter's shield issues.

      It seems to me that if Veritas can prove the NYT violated the law to get the documents, then it can have its prior restraint under Bartnicki. Otherwise, this should be reversed and Veritas should be limited to seeking discovery sanctions (and really shouldn't even get those).

      1. "investigating who the leaker was raises huge and legitimate reporter's shield issues"

        The leaker was most likely the FBI or DOJ. It occurred right after they raided Project Veritas.

        That doesn't bother you?

        1. That isn't the what happened, but if it had, it would still be a classic reporter's shield situation.

          1. Actually, no, because the FBI apparently did not do any sort of screening for attorney/client information. There is a process in the DOJ for this. It doesn’t appear to have been followed. Moreover, both the FBI and DOJ are forbidden by law from disclosing personal information to outsiders. That they do it regularly, for their strategic benefit, doesn’t diminish its illegality. And, of course, the NYT knows from whom they got it from, that it was almost assuredly illegally obtained, which means that they they were effectively on notice of this.

            1. Under Bartnicki, it doesn't matter whether they were "on notice" that the documents were illegally obtained. It only matters whether they acted illegally.

              1. ...yet PV got raided and they should, theoretically, have IDENTICAL protections. Any clue why?

                1. At this time, none of us know what's going on with PV unless we are the FBI agent who applied for the warrant or the judge who issued it.

                  But an obvious possible explanation for PV's treatment would be suspicion that PV itself acted illegally, which would put them on the other side of the Bartnicki line. (Note that Bartnicki isn't a shield against investigation — just prosecution.)

                  1. And, of course, if they'd acted illegally, it makes perfect sense that, instead of publishing anything related to the diary, they instead contacted the authorities and turned it over, right?

          2. Then what did happen?

            1. We don't know.

              Which means the real question is: on whom is the burden?

              1. We don't know.

                Then that kind of undercuts Dilan's "That isn't what happened" declaration, doesn't it?

                1. I'm actually pretty sure what happened even if Sarcastro isn't.

                  1. Perhaps this would be a good time for you to admonish him to not presume to answer for you.

          3. One, no such shield is recognized in federal law, although NY state does have one.
            Two, that does not mean you cannot investigate the leak and punish the person involved on the government side.

            1. I don't think the leak came from the government, but if you want a DOJ investigation of federal employees, go ahead.

              But the NYT reporters do indeed have a shield on this issue in this state court action.

              1. I don't think the leak came from the government, but if you want a DOJ investigation of federal employees, go ahead.

                But the NYT reporters do indeed have a shield on this issue in this state court action.

                So Project Veritas would have faced Zero scrutiny if they would have just published the diary. Instead of trying to give it to law enforcement, to return to the owner?

                Which brings us back to exactly what crime was the FBI investigating?

                1. 1. Were they involved in stealing it?

                  2. That was a private diary, not a matter of public concern. So there was arguably no First Amendment right to publish it.

                  1. "That was a private diary, not a matter of public concern. So there was arguably no First Amendment right to publish it."

                    What? The "matter of public concern," as I understand it, is part of the NY Times v. Sullivan partial immunity from defamation.
                    But if it is true, then why do you need it to be a matter of public concern to have a first amendment right to publish it?
                    If PV published it and said, "we found Biden's daughter's diary and here is what it says," then how is that not protected by the First Amendment. (And certainly not defamatory, if it really says that.)

                    1. This gets into why we won the Hulk Hogan-Gawker case. If something is not a matter of public concern, a state can define its publication as a tortious public disclosure of private facts. Whether you can get an injunction against it is less clear (we lost on that issue at the appellate court), but it's definitely not protected by the First Amendment.

                      So no, you don't have a First Amendment right to publish someone's diary, at least unless the person is some sort of legitimate public figure and there's matters of public concern in there. Biden's daughter doesn't qualify under that test.

                    2. If something is not a matter of public concern, a state can define its publication as a tortious public disclosure of private facts.

                      Fun fact, though tangential to the point you were raising: New York does not recognize the tort of public disclosure of private facts.

                    3. Interesting.

                      "Biden's daughter doesn't qualify under that test."

                      But what if her diary reveals things about her father that ARE of public concern, given that he was then a candidate for high office? Seems to me that such should be protected by the 1A, even if the rest is not.

                    4. "Fun fact, though tangential to the point you were raising: New York does not recognize the tort of public disclosure of private facts."

                      Which would raise a choice-of-law issue if Biden's daughter resides in some other state.

                    5. Bored:

                      If a private diary contains matters of public concern, the First Amendment only extends to those matters.

                      We won that argument in the Gawker case too- Gawker could published a blocked and blacked out version of the video that shows the encounter took place, as a celebrity's affair is a matter of public concern- they just couldn't publish any uncensored secretly recorded sex or nudity.

                      So if Ashley's diary had actually contained anything that was of legitimate public concern, an outlet would have a First Amendment right to publish only that portion.

      2. ""investigating who the leaker was raises huge and legitimate reporter's shield issues""

        Which could be a statutory issue at the state level, in some states, but gets them nowhere at the federal level.

        And exactly how sure are you that the NYT always stiff's its sources?

  10. I think there is a notable and very important difference in the Bartnicki case that you ignored. Planning to commit a crime and planning how NOT to commit a crime are fundamentally different things.

    Planning to commit a crime is not only a very important thing from a public policy perspective but is not subject to normal privileges, even with your attorney. The planning itself is the crime of conspiracy, and criminal activity has no protection of privacy.

    On the other hand, Veritas was explicitly and clearly asking how to stay within the bounds of the law. This is normal attorney-client privileged communication. How do we comply? This IS privileged. This DOES have protections and it is clearly not criminal in any way, shape, or form.

    By missing this distinction, your paragraph between the large quotations is nonsensical.

    1. Yes, asking how to stay within the bounds of the law, while getting as close as possible to publishing lies. No at all criminal, just as you say. But as a topic for news coverage by the NYT, right in the bullseye of legitimate public interest, protected by press freedom.

      1. Except Project Veritas didn’t publish anything on the subject. But that’s the opposite of the story you want to believe, so it clearly doesn’t matter to you.

      2. Yes, asking how to stay within the bounds of the law, while getting as close as possible to publishing lies.

        What exactly is it that you think Veritas published that is the subject of this "investigation"?

        1. Didn't he say "getting as close as possible to publishing?" One wonders then why you say "What exactly is it that you think Veritas published?"

          1. So, again, what precisely was the crime?

            Conservative media is learning to not turn a damned thing over to the authorities and just publish every thing they get their hands on.

            Good move, FBI.

    2. Ben of Houston, Prof. Volokh answered this exact point brought up by a commenter upthread. He was not making the argument that those two things were the same.

  11. If the NYT litigation team was privy to these documents then they should all be sanctioned.

  12. I too would like to know how the NYT got these documents without bribery or some other corruption. Did some stranger just drop them in the mail, anonymously? Was the NYT recipient a bit too dim to recognize very quickly that they were attorney-client confidential papers?

    "Hey gang, look what I got in the mail! Anybody wanna look? I don't know what they are, but let's publish them anyway. Quick, copy these withotu reading them! Analyze them without reading them!"

    Riiiiight.

    On the other hand, you can't put these boogers back in the nose. The only plausible recourse is a default judgment against the NYT with a hefty enough fine to discourage a repeat.

    1. I think Occam'e Razor suggests that an insider who doesn't support PV's activities leaked the documents to the Times.

      1. Dilan, that would be my first guess too.

        1. But wingnuts who have never spent a minute in a newsroom seem to reach a different conclusion . . . or delusion, for short!

      2. "Occam'e Razor"

        says it was the FBI or DOJ

          1. Except we know that the FBI raided Veritas on a very unusual and flimsy pretext (looking for information about a diary that they hadn't published anything about and had turned in to the authorities months prior), and less than a week later, NYT released data based on secret Veritas information.

            The timing makes sense. The means are there, and the motive (helping political allies, whether on request or as standalones) makes a lot more sense than the claimed official reasons for the raid.

            1. No, the timing does not make sense. The FBI wouldn't have had time to even process PV's devices yet, let alone identify things that the NYT would have been interested in.

              1. "The FBI wouldn't have had time to even process PV's devices yet,"

                Yes, it takes months to access unencrypted file or documents on a computer.

                1. You don't have a lot of experience with digital forensics, do you?

                  1. You are assuming home devices are super duper protected.

                    Many, many people don't have passwords to open a laptop or home computer. Once open, unless files are encrypted you don't have to use "forensics" to read stuff.

                    1. You don't have a lot of experience with federal criminal investigations, do you?

                    2. You are assuming home devices are super duper protected.

                      Many, many people don't have passwords to open a laptop or home computer.

                      Your grandmother might not have a password on her c. 2005 Gateway tower that still sits in the corner of her living room that she keeps her recipes on. A professional carrying around a laptop for sensitive work does not leave it so you can just open the screen and start browsing through his files.

                      Once open, unless files are encrypted you don't have to use "forensics" to read stuff.

                      No. That's not how it works. It's not like on TV. They don't open up the lid and start rummaging through the files. They don't touch the machine; they take it back to be imaged. And they only work with the images.

                    3. I had a Gateway tower. Cost me about $6,000, as I recall, purchased from a catalog, long before 2005. Some of my coworkers would visit my home to watch it play Pong. I believe I still have a small, cow-spotted binder that contained some CDs and came with the computer.

                      A couple of years later, I had a computer in my office (the first at a firm of more than 300 lawyers). I believe I played some sort of TPC golf game on that one (in addition to plenty of work).

              2. The FBI wouldn't have had time to even process PV's devices yet,

                The dont have to process the devices if they already have all the information from 702 lookups.

                1. If the leak is anonymous and protected, why would the FBI need to go through the motions to pretend the phones were involved?

          2. After 4 years of RussiaGate, you still believe that the FBI and DOJ don't do this sort of leaking to media outlets, and in particular, the NYT, on a regular basis?

            1. No, but he is willing to pretend they don't. Or at least that he believes they don't.

          3. That's nuts

            What's nuts is knowing the shady (and even illegal) things that have been done by relatively senior people at the FBI and declaring the idea of one of them leaking something to a newspaper in a politically motivated attempt to harm them as being beyond the pale.

            1. Not just relatively senior people, but the very top people at the FBI: Director Comey and Deputy Director McCabe leaked confidential information to the press.

              1. And so therefore it must be the case that NYT got these documents from the FBI?

      3. Given how small an operation PV is...I'd give that a markedly less likelihood of occurring than an FBI, known for leaking to attack their enemies, doing so.

    2. A default judgment, and to hell with press freedom, right?

      Where is Nieporent, by the way? Oh yeah, he likes to say I oppose press freedom, because along with support for press freedom for internet commenters, I also support press freedom for mainstream media. Guilty as charged.

      Nieporent, you know how I keep saying internet freedom fans tend to be hostile to mainstream media? Keep your eye on this thread.

      1. If one party to a lawsuit obtains confidential client-attorney documents from the other side, what would you suggest?

        My point is that the NYT could not have been ignorant about what they got, whether they asked for it or it was gifted anonymously. They could have just shredded them without further reading, or they could have alerted the judge and opponents .... or they could publish them and pretend they really are that stupid.

        1. They are a newspaper! They don't lose their First Amendment right to report news simply because someone sues them

          1. Except they don't gain immunity from disclosure requirements either simply by being the press.

            1. What "disclosure requirements" are you talking about?

              1. Discovery? See Fed.R.Civ.P. 26 to 37. (Yes, I know this is NY Supreme Court. Equivalent CPLR sections.)

                1. Yes, I'm quite familiar with the discovery provisions of the Fed. R. Civ. P., as well as the CPLR.

                  But Ben from Texas's claim about the NYT's lack of immunity wasn't about discovery. It was, in the context of the above exchange with Dilan, about whether they as a newspaper, not a litigant, could be forced to reveal their sources. (It wouldn’t be a relevant discovery topic in the underlying PV v. NYT case how the NYT got documents that aren't related to the underlying case.) And of course they do get special privileges under NY law as a member of the press to protect their sources.

          2. Are newspapers immune to normal legal matters? Or are you trying to claim the publishing and legal sides are independent operations, and the NYT publishing confidential papers of the party suing the legal arm of the NYT is no different than the NYT publishing confidential papers of the party suing, say, the Washington Post?

          3. Let me ask a different question. If they had done something illegal to get these papers, does the First Amendment protect them from theft charges?

            My understanding is that if someone is found with a stolen car, it is up to them to prove the car was obtained legally, as far as they knew. Same with a stolen TV, computer, phone, or any other stolen property. Innocent people with stolen property usually can't point the finger at their seller fast enough.

            The NYT here simply says "We didn't do anything illegal" as if that is all it takes, because they are the Mighty NYT. Anyone else caught with stolen property would have to point the finger at their supplier.

            Is it your opinion that the First Amendment shields the NYT from this?

            IANAL. Maybe my understanding of people caught with stolen property is wrong.

            1. Let me ask a different question. If they had done something illegal to get these papers, does the First Amendment protect them from theft charges?

              No, it does not.

              My understanding is that if someone is found with a stolen car, it is up to them to prove the car was obtained legally, as far as they knew.

              No. The burden of proof in a criminal case is on the prosecution.

            2. My understanding is that if someone is found with a stolen car, it is up to them to prove the car was obtained legally, as far as they knew.

              This has little or nothing to do with the legally relevant inquiry here, but assuming you're talking about the context of criminal charges, then no: the burden is on the prosecution to prove the applicable mens rea, not on the defendant to prove its absence.

            3. David, Noscitur: I grok the presumption of innocence as a theory, but want to make sure I understand the practicalities.

              I get pulled over in a stolen car. I say nothing, not one word, to the police. The prosecution doesn't have video of me boosting the car, etc. I don't testify at my trial, my attorney doesn't cross examine any witnesses or present any evidence for the defense. The only evidence is that the car was stolen and I was driving it. My attorney asks for a directed verdict of acquittal because the prosecution hasn't established that I knew the car was stolen. Must the judge grant that, as a matter of law?

              My IANAL guess would be that the finder of fact might be able to infer the needed mens rea from mere possession sans explanation, and that most juries would in fact do so. Not the case?

              1. That was the general gist of what I was asking/guessing: if someone is found in possession of stolen property and offers no explanation of how they got it, do they get off scot-free? Will they be charged as an accessory or accomplice or whatever the legal term is? If the property owner was murdered during the theft, can the possessor be charged with felony murder?

                If the answer is no, that the prosecution really does have to prove you actually stole the property, and the best advice is to simply shut up, offer no defense at all, then why did the NYT lawyers feel the need to claim they had done nothing illegal? Maybe they need to learn to just shut up, as most movie and TV lawyers tell their clients, and as innumerable youtube videos tell people to do.

                1. That was the general gist of what I was asking/guessing: if someone is found in possession of stolen property and offers no explanation of how they got it, do they get off scot-free?

                  Knowledge of the fact that the property was stolen is an element of the offense of possession of stolen property. Juries are, of course, allowed to draw reasonable inferences from the evidence. If the circumstantial evidence makes it objectively obvious that the property was stolen, a jury might infer that the person in possession had such knowledge.

                  If the answer is no, that the prosecution really does have to prove you actually stole the property, and the best advice is to simply shut up, offer no defense at all, then why did the NYT lawyers feel the need to claim they had done nothing illegal?

                  Well, for one thing, because this is a civil case, not a criminal one. The burden is still on the accuser, but there's no presumption of innocence, adverse inferences can be drawn from silence, and the burden of proof is significantly lower.

                  1. If somebody is found to be in possession of ill gotten goods, (I won't say "Unknowingly", because there's basically no chance of that.) you may have to prove they did the dirty deed to penalize them, but they don't get to keep them.

                    Nor do they get to refuse to rat out who they got them from.

                    1. Brett, information is not goods. This is the same losing argument as the Pentagon Papers case, only without even the patina of national security.

                    2. What Sarcastro said. If the NYT had physical possession of the documents taken from a filing cabinet in PV HQ, that would be a different story. (Like, if someone had Ashley Biden's diary.)

                    3. “ What Sarcastro said. If the NYT had physical possession of the documents taken from a filing cabinet in PV HQ, that would be a different story. (Like, if someone had Ashley Biden's diary.)”

                      But you would be fine with electronic versions taken from their electronic devices (likely through misuse* of a search warrant by the FBI) miraculously turning up at the NYT?

                      *The misuse I am suggesting here is the FBI viewing what they know are attorney/client privileged documents, without the use of a taint team, etc, that are required by FBI rules and regulations. They got an ex parte search warrant, and the judge no doubt issued it assuming that attorney/client privileged information would be adequately protected, because FBI rules and procedures requiring that. Or to rephrase that, the judge almost assuredly did not believe that the warrant he signed included attorney/client information, esp that completely unconnected with the Biden case, because it would be illegal for the FBI to possess that information. But they apparently did seize it, anD then passed it on to the NYT.

                    4. They got an ex parte search warrant,

                      Um, all search warrants are ex parte, so what is the point of including that label other than to insinuate that it's more sinister than it is?

                      and the judge no doubt issued it assuming that attorney/client privileged information would be adequately protected, because FBI rules and procedures requiring that.

                      The judge didn't "assume" anything; the warrant requires that they employ a taint team (or, as it's officially known, a "filter team") if necessary.

                      Or to rephrase that, the judge almost assuredly did not believe that the warrant he signed included attorney/client information,

                      She obviously knew that seizure of electronic devices would very plausibly include privileged documents, since communications with counsel are ubiquitous in the business world, and phones are likely to have evidence of them.

                      esp that completely unconnected with the Biden case, because it would be illegal for the FBI to possess that information.

                      It is of course not "illegal" for the FBI to possess that information.

                      But they apparently did seize it,

                      They seized phones. Which is what the warrant was for. You can't only seize some documents on a phone.

                      anD then passed it on to the NYT.

                      And now we're back to the making-shit-up portion of tonight's program.

      2. Again, if you're concerned about "press freedom," you should be up in arms over what DOJ is doing to Project Veritas.

        1. But they aren't the press! They just create scurrilous videos. They don't publish anything on printing presses.

          1. That is not the measure of whether someone is a member of the press.

            Local TV news only broadcasts and doesn’t publish anything on printing presses either. According to you, they don’t qualify as a news operation either.

            1. He was being sarcastic.

            2. Alphabet was being sarcastic.
              Whooosh

      3. No, I like to say that you oppose free speech, because in every context in which speech is at issue, you come down on the side of less speech.

        Note how this case has nothing to do with § 230, right?

        1. Note how this case has nothing to do with § 230, right?

          Wait for it...

    3. The only plausible recourse is a default judgment against the NYT with a hefty enough fine to discourage a repeat.

      Unfortunately, is pretty rough on press freedoms and does as much damage as it fixes. A better solution would be to fire the FBI team in charge of the Veritas investigation and every member of FBI management that oversaw them at any level and allow them all to find jobs as mall rent-a-cops without FBI benefits or pensions. That would get the correct message across.

      That also is not going to happen as the prevailing

      1. Well, what can the judge do?
        At the very least, he does need to demand the NYT's attorneys to testify under oath about whether they were privy to the information. If so, they need to be referred to the bar.

        I don't know how the Times can be brought to heel, especially if the suspicions that the leak came from the DOJ is true. Because then we have a quis custodiet situation on one side, and I severely doubt the Times employees would willingly confess on the other, and making a martyr out of them on the grounds of "protecting their sources" will probably be counterproductive.

      2. I presented a couple of alternatives -- shred the stuff and pretend you never saw it; or notify the judge and opponent, detail how you got it, cooperate in punishing the guilty.

        If they don't want to cooperate, then yes, they should be punished. They knew what they had, they knew it was confidential and related to the lawsuit against them. This is not against The Press. It is against the NYT, and they are not royalty.

        1. "They knew what they had, they knew it was confidential and related to the lawsuit against them."

          You're just as clueless about these facts are you are about who has the burden of proof in a criminal case. The material is confidential - which has nothing to do with whether the Times can publish it, and it is not about the lawsuit or related to it.

          1. Read the decision. The judge found that the topics of the memos were connected to filings from NYT.

            1. That's one way to characterize what was said.

              The argument isn't persuasive, and you're stretching what "connected" means.

              The memos were written 4 years before this lawsuit existed.

              1. Which, interestingly, had nothing to do with the material authorized by the search warrant in the Biden matter. If the NYT received it from the FBI, it is almost certain that the FBI grossly exceeded the limits of the search warrant they were operating under.

    4. The very fact that you find the idea of an anonymous leak to the NYT to be incredible shows you're not deep into something other than objectivity.

    5. Did some stranger just drop them in the mail, anonymously?

      Possibly. Or non-anonymously.

      Was the NYT recipient a bit too dim to recognize very quickly that they were attorney-client confidential papers?

      I don't know why you think they wouldn't have recognized this. But why would they have cared? That you and I have a secret we wish to keep does not impose an obligation on other people if they learn that secret.

      1. Aren't lawyers "officers of the court" and supposed to disclose no-nos like this?

        As to recognizing what they had, they wouldn't have published it if it were useless. Their publishing it shows they knew what they had.

        1. Aren't lawyers "officers of the court" and supposed to disclose no-nos like this?

          If I as a lawyer am given another person's privileged information, in some contexts I may have some ethical obligations under the Rules of Professional Conduct to return or destroy that information. But why on earth are you bringing their lawyers into it? It wasn't the NYT's lawyers who published these documents and the article about them; it was NYT reporters. Who do not have ethical obligations under the Rules of Professional Conduct.

          And again, and building on that last point: I am saying that I'm sure that the reporters who received these documents and published a story about them did recognize what it was, but so what?

  13. compare the following arguments / positions:

    • anything New York Times does is protected by "freedom of the press" (but DOJ can do whatever it wants to Prject Veritas because it doesn't count as "the press")
    • denying legal / constitutional protections to disfavored persons or classes of persons

    The former is just a particular instance of the latter.

    1. Wait until President DeSantis sends his DoJ to raid CNN and the NY Times on pretextual warrants and then sends all the material to Project Veritas or to Trump's media organization to publish.

      He can say he learned it was ok from watching Biden and Harris.

      1. Rationalizing fascism because you speculate the other side is totally doing it is not something good people do.

        Don't be a baddie!

        1. No speculation needed. It’s right here in this case.

          The baddies are Garland and anyone else involved. They raided a media organization and gave that media organization's privileged information to NY Times reporters (don’t call them NY Times co-conspirators until there’s clear evidence).

          The FBI was acting as the king's palace guard to protect his highness from revelations of what was in his daughter’s diary. If Garland and crew weren’t crooks before the raid, they’re crooks for conducting the raid. The abuse of authority could not be more obvious.

          It’s the same as if Trump had sent the FBI to raid CNN to recover information from Stormy Daniels.

          1. 'hey, based on this fiction I wrote, we should be more fascist right back at them!'

            1. Anyone can go look up the events. Please, everyone go look up what happened. Then know Sarcastr0 for a liar and an apologist for police-state tactics against the news media.

                1. If that article is accurately describing what happened, it is virtually certain that the FBI/DOJ is not the source of the leak.

                  1. If the article is accurately describing what happened, and the FBI scrupulously observes all procedural safeguards, then it would be virtually certain the FBI wasn't the source of the leak.

                    But we already know that the FBI routinely violates procedural safeguards, and leaks like a sieve.

                    1. Well no - the key takeaway is that the devices seized from O'Keefe were cell phones, which makes it unlikely that the FBI had access to the contents in time to leak them (for all the reasons explained above).

                      But the procedural issues are also significant, because if the FBI/DOJ did leak the materials, they also did it in a way that would be highly likely to be detected and punished. And in service of publicizing some memos that arguable make Project Veritas look a little worse to people already inclined to dislike them. So even if they had the capability to be the source, which they almost certainly didn't, it doesn't seem very likely that they did.

                  2. No idea what you read that would make you say that.

                    The FBI/DoJ got the info and then it was leaked. Is there something else to know about it?

                    1. According to the article, the FBI did not have access to the two phones seized from O'Keefe as of November 11, at which point the memos were already in the Times's possession.

        2. For people like Ben every accusation is a confession either of something their 'side' has or, in their opinion, they think should do. It's just about the side they are on, no other principles are at play.

          Remember when Ben used to come here regularly to whine about how the left was so evil because they sowed division and polarization? Good times.

    2. You seem to be assuming the difference between the NYT publishing a thing and the DoJ prosecuting a case is some class distinction between their targets.

      That's...clearly untrue, by the very terms you just posited.

  14. I am troubled by the apparently equivocal nature of the NYT’s assurance that no foul play was involved, which does seem potentially qualified. If the NYT stole this information, than the fact that they are a newspaper and have an important public role no more entitles them to steal their adversaries’ confidential legal strategy than Richard Nixon’s important public role entitled him to steal from his adversaries. Newspapers are not above the law. The court may well be entitled to assure itself the material was legally obtained and a temporarry restraint might be appropriate until that can be determined.

    However, I agree that if the material was legally obtained, then an injunction is not a proper remedy.

    If the First Amendment means being a newspaper entitles you to steal from your opponents with no remedy other than damages, and if Professor Volokh is right that everyone with a blog or facebook page is constitutionally a newspaper, than perhaps Nixon’s only mistake was that he didn’t arrange for the plumbers to put out a newsletter so as to give their activities First Amendment protection. And of course, any future political leader or corporate official who wants to spy on troublemakers need merely do the same. If the powerful have financial backers and fundraising to address damages, then by the simple expedient of setting up some kind of newsletter or other media publication as a cover (kind of like setting up a business entity as a tax dodge), they can take advantage of First Amendmemt shielding and act with effective impunity.

    That doesn’t strike me as much of a recipe for a free society. I think one has to be careful about the consequences of carrying Professor Colokh’s position too far.

    1. It's quite simple really. If you have nothing to hide, you have nothing to fear! What is The New York Times afraid of, that it asserts trade secrecy and/or attorney-client privilege in any matters?

      1. I think you're trying to be sarcastic here, but I can't figure in what direction.

    2. They NYT saying they did no crimes is the only inquiry we need, right?
      Foul play by third parties is fine, per Pentagon Papers &c.

      1. 1. The NYT doesn't get to decide whether the information was legally obtained.

        2. The NYT stopped short of saying that the information was legally obtained.

        1. The NYT saying the information was legally obtained is evidence.

          The NYT stopping short of a categorical statements shows they have a good OGC. And their statement is still probative.

          1. Sure, about as probative as any random person's claim of innocence, but at least that probative.

    3. The court may well be entitled to assure itself the material was legally obtained and a temporary restraint might be appropriate until that can be determined.

      What if that is true, and it is also true that 1A press freedom empowers the NYT to publish it all without constraint?

      If the First Amendment means being a newspaper entitles you to steal from your opponents with no remedy other than damages,

      It does not mean that.

  15. If NYT were to defy the judge and publish everything, their subscription list would soar, and they would become the channel of choice for progressives who object to the way Republicans are taking over the government and abusing its power, and cementing themselves in with voter-suppression. It would be like in Network (1976) when everyone opened their windows and shouted "I'm as mad as Hell, and I'm not gonna take it any more!!!", and Faye Dunaway went prancing through the office suite shouting "We hit the mother-lode!!"

    1. Not sure defying a federal judge for the circulation numbers will turn out as well as this nigh 50-year-old movie made it out to be.

      1. What federal judge?

  16. Judge Wood doesn't seem to understand the First Amendment or the case history or 1A jurisprudence. It's a spectacularly wrong* decision that will be overturned in due time.

    * wrong as defined by precedent set by higher courts. Note that the "supreme" in Wood's court's name does not mean what it usually does. NY state has an appeals system above this level, and it should be an easy reversal if it gets to the federal level.

    1. Note that the "supreme" in Wood's court's name does not mean what it usually does. NY state has an appeals system above this level, and it should be an easy reversal if it gets to the federal level.

      ? The only federal appeal is to SCOTUS, and while this decision is egregiously wrong, it seems unlikely SCOTUS would grant cert. I think that either the Appellate Division or the Court of Appeals (the highest court in NY, for those who don't know) is going to quickly slam this.

  17. It should be noted that none of the clingers opining so forcefully in this exchange -- declaring the Times' conduct improper, demanding severe penalties, defending the separatist fringe-dwellers, railing against the mainstream, the credentialed, the accomplished, and the professional -- is, from a journalistic perspective, fit to lick the New York Times' pentips.

    lathering the rubes
    lathering the rubes
    the right-wing law professor
    lathering his rubes

    Carry on, clingers. Better Americans will let you know how far and how long, of course.

  18. ...the Times' claims that Project Veritas's videos were "deceptive" in substance. (One could separately argue that newsgathering using hidden cameras and microphones is itself inherently deceptive...

    One could argue that, but it would be irrelevant given that the two things are "deceptive" in completely different and unrelated ways.

  19. " . . . no apparent bribery or otherwise inappropriate conduct was used to obtain the memoranda . . . "

    Whiskey Tango Foxtrot

    How do you get confidential client attorney documents using appropriate conduct?

    1. You open your mailbox (physical or virtual) and see an envelope or email from an unknown sender. You open the envelope or email, and look at the documents inside, and they are confidential documents.

      In that scenario, you have engaged in only appropriate conduct.

      1. So David, you've done a great job explaining how the NYT has not broken any laws, and has no ethical conflict publishing the A-C privileged docs.

        Now please, make the opposite argument. Tell me how you'd go about prosecuting NYT for publication of A-C docs relevant to a lawsuit they're involved in.

        I learn a lot from your posts. How would you go about piercing that 1-A protection?

        1. To prosecute the NYT, you'd have to show both that the documents were obtained from PV illegally — i.e., that a burglar or hacker took them — and that the NYT was involved in that illegal acquisition, such as by soliciting the burglar/hacker in advance. (Alternatively, if they bribed an FBI agent to give them the documents after the FBI seized them, that would also be a crime.)

          If the NYT had obtained the documents via the litigation — i.e., they served a discovery request on PV, and PV produced these documents by mistake — the court could also overcome the NYT first amendment rights to publish them. (That wouldn't be prosecution, but it would enable the, as you say, piercing of the NYT's 1A protection.)

          Nothing else comes to mind right now.

    2. Ask someone who worked for more than a few minutes at a reputable newspaper.

      A good college newspaper would suffice, in my experience.

      Are conservatives genuinely this ignorant with respect to the operations of journalists, or are they just stirring the partisan pot reflexively and mindlessly?

    3. Establish a record by publishing information the public wants to see, but which others want kept secret, and it will not be long before a steady supply of story leads begins to arrive unbidden. Needless, to say, such material has to be vetted with the utmost care. To me, the question how the NYT vetted such a lead would be a pretty interesting one. Possibly the source identified himself/herself, and established personal bonafides to qualify as credible.

  20. Could a Court force the Times to disclose, in camera, how it obtained the documents so that it could at least confirm that it did not participate in obtaining the documents improperly?

    1. Unlikely given NY's reporter's shield.

    2. Wouldn't that be subject to a 5th amendment claim?

    3. Theoretically, yes, but the reporters aren't going to say, so what do you do then? Lock them up for civil contempt? Historically thatvhasn't been very popular or successful.

    4. "A" court could; this court probably can't: N.Y. Civil Rights Law § 79-h(b) provides an absolute privilege shielding professional journalists from being compelled to disclose confidential sources.

  21. I think a lot of the discussion here misses the point.
    I don't give a tinker's dam about the New York Times or Veritas, but I DO care a LOT about attorney-client confidentiality (and if you ever find yourself in serious litigation, you will, too).
    Let me tell you a story. Several years ago I was counsel to a party in a big, complicated, multiparty adminsitrative litigation case. An expert witness for one of the parties prepared a memo of comments and proposals which he intended to send to his client's lawyer, LAWYER A -- but instead, he accidently sent it to LAWYER B, who represented an adverse party. It was an understandable error: the expert had recently worked on a case for a different client in a different case who had been represented by LAWYER B. As soon as the expert realized what had happened, he called LAWYER B, who said, don't worry about it, and sent the material back to the sender in an unopened envelope.
    This is what honorable people do.
    I want the Times to come clean about who gave them this contraband information. When the cops find the stolen diamond ring at Joe's Pawn Shop, they don't want to throw Joe in jail, they want to find out who pawned the ring, presumably the thief. If the Times plausibly states, under oath, that the Veritas attorney-client communication "came over the transome" and they don't know who the source was, then the case, and the Times' credibility, should be at an end.

    1. Let me tell you a story. Several years ago I was counsel to a party in a big, complicated, multiparty adminsitrative litigation case. An expert witness for one of the parties prepared a memo of comments and proposals which he intended to send to his client's lawyer, LAWYER A -- but instead, he accidently sent it to LAWYER B, who represented an adverse party. It was an understandable error: the expert had recently worked on a case for a different client in a different case who had been represented by LAWYER B. As soon as the expert realized what had happened, he called LAWYER B, who said, don't worry about it, and sent the material back to the sender in an unopened envelope.
      This is what honorable people do.

      It's not (merely) honor; LAWYER B likely had an ethical obligation to do that. And Joe is not legally allowed to keep stolen property. Those are simply not related to the fact pattern here. NYT reporters do not have professional obligations to keep information secret just because some people want to keep that information secret. Indeed, they may well have a professional obligation to reveal the information. (And information, unlike diamond rings, isn't property.)

      1. The reporters as employees of NYT are still parties to the lawsuit and may have a obligations as litigants that they don't have as reporters. Certainly in Judge Wood's opinion they do.

      2. David, if your point is that a professional expert witness (often called a "hired gun") is expected to have a sense of honor, but a newsman isn't, I fear you may be right. But the more important point is that NO ONE should be allowed knowingly to receive and profit from stolen property; and if they do, law enforcement should require them to reveal what they know about the source of the property.
        And by the way, if the press doesn't provide any information about where the "news" came from, what basis do you have to believe what they "report"?

        1. What dirty, dark hole are you pulling this "stolen property" nonsense from?

          1. Jason, I don't know how the confidential information was obtained and given to MSM. I'm guessing you don't know either. I said: "I want the Times to come clean about who gave them this contraband information." Perhaps an innocent person found a confidential document that had been accicdently left on the bus and turned it over to their brother-in-law the reporter. But if you have property that you have no apparent right to possess, I think its reasonable to ask you how you got it. Even if you're a MSM outlet.
            Until then, I'm happy with the presumption that the property was stolen. I think that's how the cops would treat if I had the MacGuffin. Or you.

    2. " I want the Times to come clean about who gave them this contraband information. "

      This is likely the statement of someone who has not represented a newspaper and has neither familiarity with or respect for legitimate journalism.

  22. What if a non-media defendant, say ABC Corp., gets its hands on the plaintiff’s privileged communications with its attorneys? Can ABC Corp. be prohibited from publishing the communications on its website? Is the NYT treated differently because it is in the “news” business?

    1. Not for purposes of the First Amendment. Yes for purposes of New York's reporters shield laws.

    2. When you say, "non-media defendant," do you intend to imply that the information has not been published as journalism? Everyone has a right to 1A protection for their own journalism. Obviously, 1A press freedom protection does not apply to non-press activity.

    3. If a client gets ahold of privileged communications, and it doesn't happen through some inadvertent disclosure in the discovery process, the client cannot be restrained from publishing them, whether the client is a media corporation or not.

      The confusion here, as David Nieporent says above, is between publishing stuff lawfully obtained outside the court process, and using stuff obtained inadvertently through the court process. Two different rules apply to those very different things.

      1. Dilan, have you left a loose end dangling? What about the case where someone with an ethical and legal obligation gets access to legally privileged material, then contrives to pass it on to be published by a journalist who is free of those obligations. Many here seem to insist that courts have power to constrain the journalist. I think the 1A forbids that.

        I have no doubt that if the journalist knows the name of the source, a court may try to compel disclosure of that, so that the legally obligated source can be punished.

        One reason to be especially careful to apply 1A press freedom specifically to the institutional press is to enable the institutional press to more-effectively resist that kind of court attack on the 1A. Joe Keyboard tends not to have resources sufficient to accomplish that, nor much self-interest in defying a court either.

        Knowing that, sophisticated sources make sure that when they have important insider stories to leak illegally, they go to well-established press institutions, not to Joe Keyboard. What kind of legal controls ought to apply to that conduct is a question for which American constitutionalism cannot afford to supply an answer. It is a quandary which pits 1A press freedom against due process, in an all-or-nothing contest which the nation cannot wisely decide one way or the other.

        Hence, the Kabuki theater of institutional press reporters who go to jail to conceal sources. And judges who in due time let the reporters out without disclosures, and without draconian punishments of either the reporters or the press institutions they work for. That drives enemies or press freedom crazy, but it is the wisest way for the nation to manage an unresolvable conflict in its fundamental laws.

        1. "One reason to be especially careful to apply 1A press freedom specifically to the institutional press is to enable the institutional press to more-effectively resist that kind of court attack on the 1A."

          But applying 1st amendment press freedom specifically to the 'institutional' press, enables the government to effectively deny it to those it decides not to declare 'institutional'. Something it can't do if you stop pretending the institutional press are specially privileged, and accept that "freedom of the press" is everybody's freedom in the use of that instrumentality.

          1. But applying 1st amendment press freedom specifically to the 'institutional' press, enables the government to effectively deny it to those it decides not to declare 'institutional'.

            Nope. That is just something you made up, because like a lot of internet fans, you want the institutional press hampered, hobbled, and constrained. Sorry, Brett, the institutional press gets 1A press freedom for every means, practice, and method necessary to carry out its press mission—including for means, practices, and methods, which most internet authors never use.

            The activities practiced by lone-wolf internet opinion authors do not define the scope of press freedom. I get that you think that is a claim for special privileges for the institutional press. You do that because you are confused, and don't know what you are talking about—and also you oppose the institutional press, because it publishes information you don't like.

            1. That's not really right. Other than a flirtation with "media defendants" in defamation law, SCOTUS has avoided giving media corporations any special First Amendment privileges. Like, for instance, the media doesn't hold any special right of access to trials, and does not enjoy any special First Amendment protection against search warrants. The operative definition of "freedom of the press" is closer to Brett's than to yours- it just refers to the publication component of free speech.

              1. Dilan, did you happen to read what I mentioned above about the Kabuki theater of putting institutional media defendants in jail for due process violations, but not actually compelling their cooperation? Do you suppose that every private journalist who publishes on the internet can expect to benefit from similar indulgence?

                Consider also the considerable body of law protecting or regulating news gathering practices. How much of that has any relevance to a would-be internet journalist who does not gather news, but publishes only opinion?

                You are of course aware that some states have passed shield laws for institutional journalists.

                Prior to Section 230—and still among print journalists—there was a legal doctrine of shared liability, among publishers and authors. That of course could be interpreted as a burden imposed on the institutional press, and later made unique to print journalists, and in some ways it is. But I count it also as an absolutely indispensable bulwark of press freedom. None of it applies to non-institutional journalists, whether online or in print.

                As I have mentioned elsewhere, 1A press freedom does indeed afford restraints on government, if it attempts to regulate press conduct indirectly, by tactics which are almost exclusively targeted at the institutional press. Joe Keyboard has no need of a court ruling to bar government from licensing sales of newsprint, for instance. But no such laws—which have been used in other nations—would pass muster under the 1A. Likewise with attempts to meddle with advertising sales—at least among traditional media. It will be interesting to see if a different body of law comes to be applied to regulate algorithm-driven advertising sales.

                To discern comparative legal differences between the institutional press and purely individual journalistic practices probably requires more attention to the nuances of court outcomes than can be discovered by exacting readings of legal decisions. I have explained at least part of that by my comment touching on the unresolvable conflicts between due process and press freedom.

                1. Dilan, did you happen to read what I mentioned above about the Kabuki theater of putting institutional media defendants in jail for due process violations, but not actually compelling their cooperation?

                  First of all, "due process violations" doesn't make any sense in that sentence. They're put in jail for contempt of court. Second, putting someone in jail is in fact how one compels their cooperation. (Notwithstanding Abu Ghraib, waterboarding is illegal.)

                  Do you suppose that every private journalist who publishes on the internet can expect to benefit from similar indulgence?

                  The indulgence of putting them in jail? Sure.

                  1. Nieporent, is it your view that when reporters refuse to deliver information subpoenaed on behalf of a plaintiff in a libel suit, they have not interfered with the due process to which the plaintiff is entitled? Is there anything more substantive than pedantry in your comment?

                    Second, putting someone in jail is in fact how one compels their cooperation.

                    Nope, leaving someone in jail is what compels their cooperation. Letting them out before they cooperate sends a different message.

                    Another source of compulsion is ruinous financial judgments, directed against reporters and institutional publishers alike. Those are vanishingly rare, and where tried tend to get reversed on appeal.

            2. Sorry, Brett, the institutional press gets 1A press freedom for every means, practice, and method necessary to carry out its press mission

              Watching Lathrop debate Brett on law is like seeing two howler monkeys fight over who gets to use a clarinet. No matter who wins, you know it's not going to be used correctly.

              This may be what you wish the law was, Stephen, but it is not. It is wrong in every particular. The institutional press does not have special 1A privileges, and 1A press privileges — whoever possesses them — do not license "every means, practice, and method necessary to carry out its press mission." Douglas advocated for that position in Branzburg, but that was a dissent that attracted no votes.

              1. Yeah, you've said that before Nieporent. You are also the guy who ran away when I challenged you to answer whether 1A press freedom included protection for the activity of advertising sales to support a newspaper—which you had denied by saying that advertising sales had nothing to do with defining publishing. So here it is again. Does the 1A permit, prohibit, or stay silent about a government attempt to outlaw newspaper advertising sales? See if can answer without attempting one of your usual subject changes.

                1. guy who ran away

                  What's the saying: every accusation is a confession?

                  when I challenged you to answer whether 1A press freedom included protection for the activity of advertising sales to support a newspaper—which you had denied by saying that advertising sales had nothing to do with defining publishing.

                  I literally have no idea what you are talking about here.

                  Does the 1A permit, prohibit, or stay silent about a government attempt to outlaw newspaper advertising sales?

                  Of course it prohibits that. Just like it prohibits bans on corporations expending money to expressing their views about candidates. This is often described in shorthand as "money = speech," with liberals then angrily denouncing that argument. But that's just shorthand. Of course the government can't attack the press through the backdoor by attacking its profitability.

                  See, e.g., Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue or Arkansas Writers' Project, Inc. v. Ragland for examples of that general principle. (Not the exact factual scenario you describe, but cases holding that the government can't impose special financial burdens on some media outlets.)

            3. Stephen: The institutional press should get special 1A privileges.

              Brett: That's a problem because that means the government gets to decide who gets privileges. Rather, everyone involved in press activities should get those same privileges.

              Stephen: I know you're lying and actually want to deny these privileges to the institutional press. Anyone who advocates for more rights is secretly arguing for fewer rights!

              1. Nieporent, because I have replied to this point from you in the past, it has become reasonable now to say you are lying about what you know my position to be. For the benefit of others, my point has never been that the institutional press should get, "special," 1A privileges. That is a charge right wingers (and Nieporent, in my case, but probably for idiosyncratic reasons of his own) bruit as red meat for institutional-press-hating talk radio audiences. They use it to prejudice gullible broadcast- and internet-media audiences against better sources of information.

                My point has been and remains that the 1A press freedom clause has always protected the activities and practices necessary to maintain and operate an institutional press. I say further that those activities and practices are protected for everyone alike. But because very few people actually practice institutional press journalism, relatively few people make use of the substantial fraction of press practices, activities, privileges, and immunities which characterize institutional journalism, but which play little or no part in the practice of exclusively personal journalism, because they are unnecessary for it. That fraction is there for everyone, but goes unused by most.

                That state of affairs has been seized upon by cynics who wish to constrain the institutional press, because they do not like what it publishes. Those cynics understand that many among the erstwhile talk radio audiences—or others similarly postured—also resent the institutional press, and want it hampered by government.

                So the cynics falsely charge elitism and special privilege. They demand that the institutional press be constrained within a scope adequate to protect the practices of private opinion journalism, but inadequate to enable press practices which threaten powerful private interests, or insider government interests—with whom the cynics sympathize or identify. The hope is to choke off the institutional press as a part of American constitutionalism, by raising public ire against what are falsely claimed to be special privileges for the institutional press.

                I advocate against that. Nieporent says repeatedly that I don't know what I am talking about. Judge for yourself.

                1. Nieporent, because I have replied to this point from you in the past, it has become reasonable now to say you are lying about what you know my position to be.

                  I'm pretty sure it counts as gaslighting when you deny that your position is exactly what you just said above.

                  So the cynics falsely charge elitism and special privilege. They demand that the institutional press be constrained

                  But this is lying, because nobody demanded that.

                  1. I'm pretty sure it counts as gaslighting when you deny that your position is exactly what you just said above.

                    Perhaps you refer to my comment about judicial handling of institutional press refusal to name sources in court. Note that I did not say reporters should not go to jail. In other comments previously, I have also come out against shield laws for journalists, precisely because I think they tend toward two bad outcomes:

                    1. Folks think of them as special privileges for elites, which creates hostility to press freedom.

                    2. They tend to decide the issue I said courts should always leave undecided—whether due process claims or press freedom claims should prevail. Both are fundamental constitutional principles which American constitutionalism cannot ever afford to discount to zero. Thus, all a wise court can do when an issue which puts them in conflict arises, is dodge the conflict.

                    If that is not what you are talking about, then please quote anything you can find from me which says press freedom should not be available alike to everyone. Perhaps I have been unclear somewhere.

        2. Seattle Times v. Rhinehardt governs that situation. If the Times gets access to something confidential in litigation, they can't give it to anyone not authorized to get it by the Court.

          The NYT, as a litigant, is treated as any other litigant. But it can continue being a newspaper outside the context of the litigation.

  23. Bottom line: any certainty you know what the FBI did does not count in a court of law, no matter how much certainty you have.

    Courts don't run on narratives that make sense. They establish stuff with evidence. There is none so far about what happened. That means the presumption is that the info was legally obtained and may be published.

    Oh, and this story also doesn't include the NYT doing anything wrong anyway, so you're off base there too.

    Just lots of special pleading that the law should smite your enemies and defend your allies.

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