James O'Keefe
James O'Keefe, founder of the activist group Project Veritas, addresses attendees at the 2021 Conservative Political Action Conference at the Hyatt Regency. (Paul Hennessy / Sipa via AP Images) Credit: Sipa USA via AP

In 1994, the CBS program 48 Hours prepared to air explosive video about unsanitary conditions at a South Dakota meat-packing plant, Federal Beef Processors. A Federal Beef employee had agreed to wear a hidden camera to capture footage of operations at the plant. But the company got a state court injunction forbidding CBS to broadcast the report. Airing the story might result in “national chains refusing to purchase beef processed” by the company, the state court judge reasoned—and CBS had obtained the footage by “calculated misdeeds.” The South Dakota Supreme Court refused an emergency request to lift the injunction.

One day later, U.S. Supreme Court Justice Harry Blackmun, without bothering to refer the matter to the full Supreme Court, dissolved the lower court’s order. Federal Beef was free to sue CBS after the fact for damages, if it could prove any, he said, “rather than [proceed] through suppression of protected speech and news reporting.”

At the time, Blackmun’s order, and the haste with which it was granted, didn’t raise many eyebrows. Very few principles are as firmly entrenched in First Amendment law as the doctrine of “prior restraint.” That term, as the great First Amendment scholar Melville Nimmer explained, describes “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” In other words, if the government makes you submit your expression in advance for approval, that’s prior restraint. And if a court orders you not to say or print anything on a subject, that, too, is prior restraint—which is all but completely forbidden. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,” the Supreme Court wrote in 1963.

Nonetheless, every now and then, local judges begin to wonder, like the attorney played by Joe Pesci in My Cousin Vinny, whether the Court is really … serious about that. That brings us to New York Supreme Court Justice Charles Wood—in New York, every friendly local judge is a “Supreme Court Justice”—who last week issued an extraordinary order in a defamation case brought against The New York Times by Project Veritas, a far-right activist group that produces deceptively edited videos, often filmed in secret, to spur disinformation and conspiracy theories.

On November 2, Veritas had sued the Times for defamation. Its complaint was based on a September 29 investigative story by the reporter Maggie Astor and a September 30 follow-up by the media reporter Tiffany Hsuf.

The stories referred to a Veritas report accusing the campaign of Representative Ilhan Omar, a Democrat from Minnesota, of involvement in a supposed “ballot-harvesting” scheme in Minneapolis’s Somali American community; the Times quoted the conclusion of academics who study the dissemination of false news that the report was “probably part of a coordinated disinformation effort.” Veritas said the Times story was part of a conspiracy by the newspaper and a “left-leaning group of academics and college students” to discredit the Veritas report by falsely labeling it “deceptive.” The complaint demanded damages for Veritas’s legal fees as well as punitive damages for the articles.

On November 18, Veritas filed a motion with the New York state court hearing the defamation suit. This motion concerned a different story, dated November 11. It quoted from a series of memos written for Veritas by its lawyer, Benjamin Barr, outlining ways that its investigators could use deceptive means and false identities to compromise federal employees without running afoul of federal law.

We can pass over, for the moment, the irony of a suit by Veritas, which proudly specializes in reporters who assume false identities, surreptitiously film their targets, and then edit the video to maximize the harm to those targets, against the nation’s top newspaper. It’s a bit like a medical ethics complaint filed by Hannibal Lecter against Anthony Fauci.

Right now, we should focus on the unprecedented breadth of Wood’s order. It temporarily bars the Times from “further disseminating or publishing any of Plaintiff Project Veritas’ privileged materials.” What is stunning is that the order then goes further: Wood orders that the Times take down material it has already posted and, further, that “The New York Timesand its counsel shall cease further efforts to solicit or acquire” other memos. Every prior restraint case I know of has concerned an order forbidding publication of information; the court ordering a news organization to stop reporting on a subject breaches new frontiers of judicial censorship.

Making the order even more radical, the November 11 story was quoting memos prepared long before the Veritas lawsuit against the Times—meaning that the memos could in no way reveal Veritas’s legal strategy in this particular case. Moreover, the memos were not obtained through court-ordered discovery; instead, they were leaked by someone who had gotten them from the lawyers or Veritas itself. Leaks of this sort are common in coverage of controversial organizations like Veritas; there’s no evidence that the Times itself committed any misconduct in obtaining them.

For hundreds of years, English and American lawyers have understood that even harmful speech—speech that a court could lawfully punish after the fact—cannot be thwarted by judicial order in advance. As William Blackstone, the British jurist whose 18th-century Commentaries on the Laws of England was a foundational document for British and American lawyers in 1760 wrote:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no prior restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.

Simply put, if a media organization wants to roll the dice by publishing something inflammatory, the First Amendment says they can. After the fact, there may be penalties, such as damages for defamation, or even criminal prosecution if reporters broke the law—but barring extraordinary circumstances, no one can muzzle them beforehand.

The Supreme Court has stuck by that principle for nearly a century. In 1931, in a 5–4 decision, the Court struck down an order banning publication of The Saturday Press of Minneapolis. The Press—later christened by the legendary newsman Fred W. Friendly the “Minnesota Rag”—was devoted to bigoted and false attacks on politicians it disliked, a sort of Project Veritas of its day.

The majority opinion by Chief Justice Charles Evans Hughes began by noting that the bar on “prior restraint” is not total. “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops,” Hughes wrote. But “the fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.”

The Warren Court subsequently reaffirmed that the Constitution abhors prior restraints even under much more dramatic circumstances. Famously, in the 1971 case of New York Times v. United States, the Court, by a 6–3 vote, lifted a lower court injunction against publication of reporting based on the Pentagon Papers, a secret Defense Department study of the conduct of the Vietnam War that had been leaked by the former Pentagon official Daniel Ellsberg. (Disclosure: I played a very minor after-the-fact role in the leak, probably the best thing I have ever done or will ever do for my country.) The Court’s order was terse, simply reasserting the presumption against prior restraint and finding that, despite the government’s claims that national security would be harmed by publication, the case had not overcome that presumption.

Five years later, the Court unanimously struck down a local judge’s order barring media coverage of a Nebraska mass murder case. Since then, local court orders muzzling the press usually haven’t lasted long. In 1990, a New York state judge banned publication of a book revealing operations of Israel’s intelligence service; an appeals court lifted that ban within two days.

In one exceptional case, the Court let stand an injunction barring CNN from broadcasting audiotapes gathered through government surveillance of the former Panamanian dictator Manuel Antonio Noriega. Noriega, deposed by U.S. troops in 1989, was being held in a federal lockup in Miami pending trial on drug-smuggling charges. The tapes allegedly contained privileged conversations between Noriega and his lawyers; the complication in this case arose because CNN, regarding the injunction as unconstitutional, had refused to obey it; it broadcast some of the tapes in the teeth of the Court’s prohibition, and probably thus forfeited judicial sympathy for its case.

How does this play out in the Project Veritas case? The Times gained access to the memos because someone on the inside leaked them—not through the legal process of discovery. Leaks of this sort are routine, and reporters who receive them are not violating any law. Moreover, the memos do not discuss the organization’s legal strategy in the current lawsuit, but offer more general advice about how Veritas’s “reporters” can assume false identities without violating state or federal law. The memos were also written well before Veritas sued the Times, indeed before the publication of the article that gave rise to the suit. They were not produced in litigation between the Times and Veritas; rather, the article referencing them was part of the Times’s coverage of a separate federal investigation of the group.

All in all, the court enjoining the Times in advance from publishing would be, in amendment terms, a bridge way yonder too far. But the judge is also ordering the Times to take down material it has already published, even to refrain from further reporting on the subject matter, regardless of whether the information gathered isn’t published. Finally, the story on the memos is not an issue in the case before Wood’s court; he arguably has no jurisdiction on the matter at all.

Disconcertingly, a New York appellate judge on Friday refused to intervene in the case.

The next step, as in the South Dakota beef-processing case, would be an emergency petition to the Supreme Court. But the case arises just as the Court’s conservative majority has launched an unprecedented offensive against the media. For the past two years, Justice Clarence Thomas has been campaigning for radical changes to the law of defamation—changes that would make lawsuits against the media much easier to win. And in a secretive September speech at Notre Dame, Justice Samuel Alito accused the media and other critics of “unprecedented efforts to intimidate the Court or damage it as an independent institution.” Even Justice Stephen Breyer, in his 2021 book, The Authority of the Court and the Perils of Politics, took reporters to task for even using the terms liberal and conservative to describe members of the Court. What’s more, the newest justice, Amy Coney Barrett, stood next to Senator Mitch McConnell and scored the media because its coverage “leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision.”

Beyond this, conservatives on the high court have also begun to display an odd languor in providing emergency relief to parties they dislike. Will The New York Times join that enemies list? More ominously, will Justice Thomas write in a separate opinion that he and the ghost of James Madison agree it’s time to put these purveyors of fake news in their place?

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Garrett Epps is the legal affairs editor at the Washington Monthly.