Stephen J. Adler, who recently retired as editor in chief of Reuters, is chairman of the Reporters Committee for Freedom of the Press, where Bruce D. Brown is the executive director.
Fortunately, in June 1971, that challenge was resolved quickly. Given the importance of First Amendment interests, the Supreme Court hastened to vindicate the public’s right to know. From start to finish, the case lasted a mere two weeks.
This sense of urgency stands in contrast to a current situation in Westchester County, N.Y., where a state trial judge has restrained the Times from reporting on a matter of public interest for 28 days and counting and shows no indication of moving forward with any speed.
The court’s order in New York is nearly unheard of in our court system — thanks to the precedent of the Pentagon Papers case, which famously established that, even in matters of national security, the government faces an almost impossibly heavy burden in seeking to impose a “prior restraint” on a news outlet to forbid it from publishing an article. Only an interest as weighty as shielding the movement of troops in wartime might justify such an action.
The reason is clear. The First Amendment does not tolerate the idea that speech can be censored in advance, even if it might be punished after the fact. This is because prior restraints do not just “chill” speech on public affairs, they “freeze” it, which can give the government and private litigants a powerful tool to hide information and to skew public debate.
Imagine if you hadn’t been able to learn about what happened during the Jan. 6 uprising because news outlets had been restrained on purported national security grounds. Imagine if you happen to use a product that a news organization has learned is unsafe, but its manufacturer has gone to court to bar reporting about it by claiming the reporting was untrue, or unfair, or based on internal documents. The Constitution ensures that the company can sue afterward, but that it cannot block the flow of information in the first place. The bargain we have made is that whatever damage might come from publishing is not as harmful as an ongoing restraint on free speech.
It is difficult to overstate the anomaly — and the danger — of the current case. In September 2020, a group called Project Veritas released several videos that it said were evidence of election misconduct in Minneapolis. Reporting by the Times called a Veritas video “deceptive.” Last year, Project Veritas sued the Times for defamation.
On Nov. 11, 2021, the Times ran a story that detailed and published excerpts from a series of memos reportedly prepared by Project Veritas’s lawyer. Project Veritas claims these memos are “attorney-client privileged” — that is, they represent confidential legal advice.
According to Times reporters Adam Goldman and Mark Mazzetti, the documents contain guidance on how aggressive the group’s tactics could be while still avoiding running afoul of the law. Project Veritas’s practices had generated extensive news interest following reports in early November that the FBI had searched the homes of Project Veritas founder James O’Keefe and two associates in an investigation into the reported theft of a diary from Ashley Biden, President Biden’s daughter. (O’Keefe has denied any wrongdoing, saying, “We never break the law.”)
It’s important to emphasize that these memos are, according to the Times report, several years old. As such, they do not pertain to the defamation case against the Times, nor were they obtained as part of that litigation, and they do not relate to the FBI search.
Nonetheless, Project Veritas’s attorneys in the defamation proceeding asked for, and Justice Charles D. Wood of the state Supreme Court in Westchester County granted, an order restraining the Times from further reporting on the memos. In addition, the court instructed the Times to “cease further efforts to solicit or acquire” such materials.
Consider the implications if such a ruling became the norm. Any company, organization or private individual could sue a newspaper for defamation and then block the newspaper from reporting information that journalists have acquired independently on the grounds that it reveals something confidential the plaintiff would prefer to keep secret. Not only would that transform the civil court system into a general-purpose media censor, but it would also invite frivolous lawsuits brought expressly to shut down reporting in the public interest.
Wood held oral arguments more than three weeks ago but has yet to rule. In the meantime, the Times is in limbo, and its reporters are uniquely limited in their reporting because an order such as this exposes them to fines or jail if they misunderstand its scope and are found to have disobeyed it. (On Dec. 14, Wood clarified the order slightly but left the underlying restraint in place.) We urge him to lift his injunction immediately or to give the Times a ruling it can appeal if necessary to end this affront to press freedom. Every moment he fails to act is an ongoing, egregious injury to the First Amendment and the American public.