Half a century ago, the Supreme Court settled the matter of when a court can stop a newspaper from publishing. In 1971, the Nixon administration attempted to block The Times and The Washington Post from publishing classified Defense Department documents detailing the history of the Vietnam War — the so-called Pentagon Papers. Faced with an asserted threat to the nation’s security, the Supreme Court sided with the newspapers. “Without an informed and free press, there cannot be an enlightened people,” Justice Potter Stewart wrote in a concurring opinion.
That sentiment reflects one of the oldest and most enduring principles in our legal system: The government may not tell the press what it can and cannot publish. This principle long predates the Constitution, but so there would be no mistake, the nation’s founders included a safeguard in the Bill of Rights anyway. The First Amendment says, “Congress shall make no law … abridging the freedom of speech, or of the press.”
This is why virtually every official attempt to bar speech or news reporting in advance, known as a prior restraint, gets struck down. “Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity,” the Supreme Court said in a 1963 case. Such restraints are “the very prototype of the greatest threat to First Amendment values,” Justice Antonin Scalia wrote a generation later.
Last Friday, however, a New York trial court judge broke from that precedent when he issued an order blocking The Times from publishing or even reporting further on information it had obtained related to Project Veritas, the conservative sting group that traffics in hidden cameras and fake identities to target liberal politicians and interest groups, as well as traditional news outlets.
The order, a highly unusual and astonishingly broad injunction against a news organization, was issued by Justice Charles D. Wood of the State Supreme Court. He wrote that The Times’s decision to publish excerpts from memos written by Project Veritas’s lawyers “cries out for court intervention to protect the integrity of the judicial process.” This ruling follows a similar directive Justice Wood issued last month in response to a story The Times published that quoted from the memos.
(An appeals court on Tuesday ruled the Times can maintain access to copies of legal memos belonging to Project Veritas for now, though the newspaper is still temporarily barred from publishing the materials).
In requesting the order from Justice Wood, Project Veritas’s lawyers acknowledged that prior restraints on publication are rare, but argued that their case fits a narrow exception the law recognizes for documents that may be used in the course of ongoing litigation. This exception recognizes that because parties are forced by the court to disclose materials, courts should have the power to supervise how such forced disclosures are used by the other party. The litigation here is a libel suit Project Veritas filed against The Times in 2020, for its articles on a video the group produced about what it claimed was rampant voter fraud in Minnesota. The video was “probably part of a coordinated disinformation effort,” The Times reported, citing an analysis by researchers at Stanford University and the University of Washington.
The group’s lawyers also argue that the memos are protected by attorney-client privilege and that The Times was under an ethical obligation to return them to Project Veritas, rather than publish them. This is not how journalism works. The Times, like any other news organization, makes ethical judgments daily about whether to disclose secret information from governments, corporations and others in the news. But the First Amendment is meant to leave those ethical decisions to journalists, not to courts. The only potential exception is information so sensitive — say, planned troop movements during a war — that its publication could pose a grave threat to American lives or national security.
Project Veritas’s legal memos are not a matter of national security. In fact, but for its ongoing libel suit, the group would have no claim against The Times at all. The memos at issue have nothing to do with that suit and did not come to The Times through the discovery process. Still, Project Veritas is arguing that their publication must be prohibited because the memos contain confidential information that is relevant to the group’s litigation strategy.
It’s an absurd argument and a deeply threatening one to a free press. Consider the consequences: News organizations could be routinely blocked from reporting information about a person or company simply because the subject of that reporting decided the information might one day be used in litigation. More alarming is the prospect that reporters could be barred even from asking questions of sources, lest someone say something that turns out to be privileged. This isn’t a speculative fear; in his earlier order, Justice Wood barred The Times from reporting about anything covered by Project Veritas’s attorney-client privilege. In Friday’s decision, he ordered The Times to destroy any and all copies of the memos that it had obtained, and barred it from reporting on the substance of those memos. The press is free to report on matters of public concern, he wrote, but memos from attorneys to their clients don’t clear that bar.
This is a breathtaking rationale: Justice Wood has taken it upon himself to decide what The Times can and cannot report on. That’s not how the First Amendment is supposed to work.
Journalism, like democracy, thrives in an environment of transparency and freedom. No court should be able to tell The New York Times or any other news organization — or, for that matter, Project Veritas — how to conduct its reporting. Otherwise, it would provide an incentive for any reporter’s subjects to file frivolous libel suits as a means of controlling news coverage about them. More to the point, it would subvert the values embodied by the First Amendment and hobble the functioning of the free press on which a self-governing republic depends.
— The New York Times, Dec. 24