By Mimi Nguyen Ly
A New York judge has ordered The New York Times to return confidential legal memos it obtained between investigative journalism organization Project Veritas and the group’s lawyer.
The New York Times had obtained the memos that were prepared by Project Veritas attorney Benjamin Barr—it remains unclear how the memos were obtained. The outlet then published the documents online. It later took them down, but an article published Nov. 11 describing the memos was still available on the paper’s website.
The memos, in part, contained advice from Barr as to how Project Veritas’s methods of reporting, which largely involves reporters going undercover, could avoid running into legal problems.
Project Veritas sued the paper and accused it of having obtained the privileged materials without authorization.
“The court finds that Project Veritas has met its burden of showing that the subject memoranda were obtained by irregular means, if not both irregular and improper means,” State Supreme Court Justice Charles D. Wood in Westchester County said in his ruling (pdf) dated Dec. 23.
Wood upheld his earlier order in November that blocked the newspaper from further publishing the memos. He also ordered The New York Times to return the memos to Project Veritas, including the physical copies. The paper must destroy “all copies of the memos it has, including removing them ‘from the internet,’” and retrieve all copies of the memos that it had provided to third parties.
Furthermore, The New York Times must confirm its compliance within 10 days. Wood told Project Veritas to notify the court by the end of January 2022 if the newspaper does not comply and warned The New York Times of potential sanctions in such a case.
Wood also ordered the paper not to use the memos, or any information obtained from them, in a separate lawsuit that Project Veritas filed against The New York Times in late October 2020. The defamation suit was filed after The New York Times had published an article in September 2020 calling Project Veritas’ reporting “deceptive.”
A.G. Sulzberger, the publisher of the New York Times, said the newspaper will appeal Wood’s ruling and seek a stay in the meantime.
The New York Times in November ran a report about how the FBI raided the home of Project Veritas founder James O’Keefe, as well as homes of other current and former Project Veritas staffers.
O’Keefe said in a statement at the time that the Justice Department appeared to be investigating the alleged theft of a diary of Ashley Biden, the daughter of President Joe Biden.
In the report on the matter, The New York Times quoted the memos, which comprise attorney-client communications, leading Project Veritas to accuse it of having violated attorney-client privilege.
Wood, in his Dec. 23, order, said the memos were not a matter of public concern, and that it is “clear” the balance “tips in favor of the attorney-client privilege.”
“The court rejects the New York Times’ position that Project Veritas’ attorney-client communications are a matter of public concern. Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” the judge wrote, later adding, “But some things are not fodder for public consideration and consumption. These memoranda … are only between an attorney and a client, and it does not matter one bit who the attorney and client are.”
“A client seeking advice from its counsel simply cannot be a subject of general interest and of value and concern to the public,” he later added. “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.”
“That is not to say that aspects of Project Veritas and/or its journalistic methods are not of public interest,” Wood noted, adding that The New York 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.”
Sulzberger characterized Wood’s ruling as an attack of press freedoms and alarming for “anyone concerned about the dangers of government overreach into what the public can and cannot know.” He decried the ruling as “unconstitutional” and a “prior restraint,”—a term that refers to government action prohibiting speech or other expression before speech happens.
Sulzberger also said the ruling “could present obvious risks to exposing sources should it be allowed to stand.”
Wood addressed the matters in his ruling, writing, “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 restraint is, on the present facts, the erosion of the attorney-client privilege is a far more imminent concern.”
He quoted an extract from a prior ruling in 1979, Greenberg v CBS Inc., which reads, “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.”
Wood said his ruling is “grounded in the recognition that the First Amendment’s primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of justice and the attorney-client privilege.”
Project Veritas lawyer Elizabeth Locke praised the ruling and called it “a victory for the First Amendment for all journalists and affirms the sanctity of the attorney-client relationship.”
“The New York Times has long forgotten the meaning of the journalism it claims to espouse, and has instead become a vehicle for the prosecution of a partisan political agenda,” Locke said in a statement Dec. 24. “Today’s ruling affirms that the New York Times’ behavior was irregular and outside the boundaries of law.”
Reuters and The Associated Press contributed to this report.