The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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:
- 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.)
- In both cases, the communication was generally and reasonably understood by the parties to be confidential as between them.
- 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.