• by Tony Silber , Staff Writer, December 29, 2021

The Christmas Eve decision by a New York State Supreme Court judge to uphold an earlier order that The New York Times stop publishing legal memos between the right-wing political group and its lawyer raises a host of concerns about the First Amendment and the extent of press freedom.

The decision released on Friday, comes after a defamation lawsuit was filed last year Project Veritas against the Times.

The judge, Justice Charles D. Wood in Westchester County, framed the decision as one that seeks to balance attorney-client privacy with freedom of the press.

“It would indeed be a Pyrrhic victory for the great principles of free expression if the [First] 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,” the judge wrote.

He also ordered the newspaper to turn over any physical copies of the memos that it has and to destroy electronic copies.

For First Amendment advocates, the decision amounts to an unusual use of prior restraint of the Times. The judge denied it. “The court's protective order does not act as an impermissible prior restraint on the Times,” Wood wrote. “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.”

Ultimately, the judge concluded, the right to publish news hinges on whether it’s a matter of public concern, and privileged conversations between lawyers and their clients cannot be defined that way.

The Freedom of the Press Foundation, a nonprofit organization that protects, defends and empowers public-interest journalism, called the ruling “shocking and troubling.”

The full decision can be read here. 

The Times said it would seek a stay of the ruling and would appeal it as well.

“This ruling should raise alarms not just for advocates of press freedoms but for anyone concerned about the dangers of government overreach into what the public can and cannot know,” Publisher A.G. Sulzberger, said in a statement on Friday. “In defiance of law settled in The Pentagon Papers case, this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.”

The original defamation lawsuit stemmed from the Times describing Project Veritas videos as “deceptive,” and saying the organization has “a long history of releasing manipulated or selectively edited footage.” The organization is known for using hidden camera and concealing identities in efforts to trap journalists in embarrassing situations.

The Times subsequently reported that Project Veritas was under federal investigation in connection with the theft of a diary belonging to Ashley Biden, the president’s daughter. In that story, the Times quoted the memos, leading Project Veritas to accuse the newspaper of violating attorney-client privilege.

The reaction among the media to Justice Wood’s decision was predictable. “Justice Wood has taken it upon himself to decide what The Times can and cannot report on,” the Times editorialized. “That’s not how the First Amendment is supposed to work.”

Katie Townsend, a media and First Amendment lawyer and legal director for the Reporters Committee for Freedom of the Press, called the decision “very disappointing. A journalist's job is to inform the public, not gather evidence for attorneys,” she tweeted.