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Tuesday, June 28, 2022

State Judge Rewrites First Amendment With ‘But I Don’t Like The NY Times’ Exception

Do you know what prior restraint is? Have you taken even a glancing look at the First Amendment or its associated precedent? If the answer to either or both of these questions is “yes,” then you’ve got what it takes to win America’s favorite game show: Are You Smarter Than A NY State Trial Judge?

In an opinion released over the holiday, New York Supreme Court Justice Charles D. Wood uncorked a laugher of an opinion imposing prior restraint on the New York Times. If that confuses you, it’s because you’ve spent more time researching basic law than Justice Wood has.

Or, as Professor Schleich points out:


At issue are memos the Times acquired documenting privileged conversations between conservative group Project Veritas — a sort of right-wing Candid Camera with similar journalistic standards — and its attorney Benjamin Barr. These memos appear to show the group consulting with Barr over reporting practices in an effort to steer clear of legal trouble.

Note, and this is important, this case has nothing to do with the subject of these memos. These memos are wholly independent of the existing case between Project Veritas and the Times that should… one would think… define the outer confines of Justice Wood’s jurisdiction here. But that’s not how this is going to play out.

This latest chapter between these parties began on November 11, 2021, at 1:07 P.M. when the Times emailed Project Veritas founder James O’Keefe and Project Veritas’ outside counsel Benjamin Barr, stating, “We are planning to publish a story based on legal memos that Mr. Barr provided to Project Veritas. The memos provide legal advice about how different PV operations could violate various laws, including the Espionage Act and Section 1001. The memos give guidance about how PV can remain in Mr. Barr’s view, on the right side of these laws.”

Speaking of laws like the Espionage Act, assuming the New York Times didn’t hack into Project Veritas hard drives to steal these memos then… what exactly is the legal basis for this objection at all? This is where you’d summarily toss the motion on a 2L exam, but instead Justice Wood cited a lengthy passage from an almost 30-year-old Southern District of Florida opinion:

“[W]hat if a confidential memorandum is stolen from an attorney’s office and subsequently published in newspapers across the country? Clearly, the client should not be held to have waived the attorney-client privilege. The fact that the contents of a privileged document have become widely known is insufficient by itself to eliminate the privilege that covers the document. Although in practical terms the document has lost any semblance of confidentiality, the Court in legal terms must recognize that the client has not intentionally waived the privilege. To hold that public circulation eliminates the privilege would, in effect, give any individual who secured a privileged document the power to waive the attorney-client privilege by simply having the contents widely recounted in newspaper reports (see Smith v Armour Pharm. Co.. 838 F. Supp. 1573, 1577 [S.D. Fla. 1993]).

Yeah… no one is suggesting that a stolen memo can be admitted in a related trial, which is the only relevant takeaway from this opinion. The federal judge here is saying that privilege is not defeated just because a newspaper published the contents of the privilege, implicitly recognizing that newspapers can publish privileged materials.

And this passage is only marginally relevant if the material is stolen because, depending on how the memos got out, it’s not even clear that they’d even retain privilege. But assuming arguendo that these were stolen, the client could sue someone for stealing the document — ironically, these memos might provide some insight on that score! — but what they can’t do is bar the newspaper from publishing the document.

Bucking the weight of hundreds of years of American jurisprudence, Justice Wood went full Bozo, disingenuously dispensing with precedent to contend that this would fall into an exception to the standard ban on prior restraint because this simply isn’t information of public interest.

In other words, he wrote with a straight face that an organization purporting to report “news” regularly asking its lawyer if it’s implicating itself in crimes isn’t a matter of public concern. This sets up the curious regime where national security secrets cannot be the subject of a prior restraint, but probing into whether the news lied about a national security issue could be.

In light of these principles of law, the court rejects the 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 state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half. Our smart phones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some 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.

Crackerjack legal analysis. It’s honestly difficult to write a 28-page opinion without accidentally citing caselaw for key conclusions, but Wood managed to do it by citing “iPhones and the Tweeterbook have rendered the Pentagon Papers dead letter” from the seminal In re: Old Man Yelling At Clouds.

This analysis is sophomoric. He’s taking distinct legal questions and throwing them into a blender. The attorney-client privilege does not turn on the identity of the client. Public concern does. A document can both be privileged and a matter of public concern because the two concepts have nothing to do with each other.

Yet he does this over and over throughout the opinion. Consider this mind-boggling passage:

The court has also considered the Times’ contention that this court has no power to address the Times’ publication of these memoranda, since they were obtained outside the discovery process.

Great point! This is lawsuit between the parties is wholly unrelated to theses memos. Unless, of course, there’s some sort of dispute over whether or not the documents were produced as part of discovery in this matter.

There is no dispute by Project Veritas that the memoranda were obtained by the Times outside of any discovery related to this action.

Were the contemporaneously produced?

Although the memoranda were written almost four years before the Times published them on November 1l, 2021…


… similar themes and allegations by the Times against Project Veritas permeate the memoranda and the pleadings in this case.

Good heavens.

So, the argument is that once someone goes after a newspaper that publication is perma-banned from ever reporting on that vexatious plaintiff again? Because the “themes” are always going to be the same because Project Veritas does the same schtick over and over. And that schtick is quasi-journalism that pushes the boundaries to the extent that it legitimately worries about legal repercussions.

Which is the glaring irony of this whole affair. The organization that the DOJ is investigating for its role in stealing the diary of the president’s granddaughter objects to the New York Times printing privileged memos. But just like how, in that instance, there was no basis for restraining Project Veritas from publishing stories about that diary, there’s zilch justification for barring the Times from publishing these memos.

If there’s criminal activity involved in getting the material that can get sorted out later, but as Walter Sobchak would point out, “the Supreme Court has roundly rejected prior restraint.” Or at least the U.S. Supreme Court has, because New York’s trial level version has some remedial learning ahead of it.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.


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