The language is clear and unambiguous: “Congress shall make no law … abridging the freedom of speech, or of the press.”
In practice, that means that with very few and exact exceptions, no one in government can tell a newspaper what to print. No one – not the president or a senator, or an agency bureaucrat or a sitting judge.
Yet that is just what Justice Charles D. Wood of the New York State Supreme Court did in an order issued just before Christmas, as he prohibited The New York Times from publishing documents the paper has obtained regarding Project Veritas, a right-wing activist group.
The order represents an unprecedented violation of the First Amendment and the idea of a free and independent press. It cannot be allowed to stand.
There’s little comfort in the fact that Justice Wood’s order already has been partially lifted. A New York state appeals court on Tuesday lifted the portion of the order requiring The Times to turn over or destroy the documents in question.
The paper still cannot report anything from the documents, however, until a further hearing is held.
While that may be a sign that sanity will ultimately prevail, it’s beyond disconcerting that a judge would issue the order in the first place.
The documents are legal memos prepared for Project Veritas years ago describing strategies they can use to make sure their often-deceptive practices – including secret cameras and fake identities used to embarrass opponents – stay on the right side of the law.
The Times legally obtained the memos through regular reporting – through doing its job. It published some of their contents as part of its reporting on an investigation by Justice Department into Project Veritas for the group’s possible role in the theft of a diary belonging to President Biden’s daughter.
In a prior, unrelated case, Project Veritas is suing The Times for defamation. The group argued, and Justice Wood agreed, that because of the ongoing litigation, the newspaper’s use of the memos represents a violation of its attorney-client privilege.
That’s hogwash. The reporting done by the newspaper on Project Veritas is clearly in the public interest and within its rights as a news organization. The memos have nothing to do with the litigation between the group and the newspaper, and everything to do with how a prominent, publicity-seeking organization engages with the public.
Saying otherwise would have what one media lawyer called the “ultimate chilling effect.” Organizations that found themselves the target of critical reporting by a newspaper could sue them, then argue that any subsequent reporting should be subject to a gag order as a result of that suit.
What’s more, Justice Wood’s order left no room for other courts to make it right. If The Times had been forced to destroy the documents, any future ruling in their favor would be moot.
Thankfully, the appeals court acted first. They shouldn’t have had to.
The matter has been resolved for at least 50 years, when a judge refused to allow the Nixon administration to block The Times and Washington Post from publishing details of classified documents detailing the history of the U.S. involvement in Vietnam, dubbed the Pentagon Papers.
That ruling, and others, lay out the boundaries. Troop movements in wartime may be a matter of national security and thus within the bounds of a government ban on publishing. But the government’s handling of a war and its genuine feelings on how that war is going are of the public interest and subject to First Amendment protections, as are the operations of a group like Project Veritas.
That should be clear, and until Justice Wood’s ruling, it had been as clear as any legal precedent.
The courts should use this occasion to reaffirm the rights of free speech and an open press, and keep government from crossing a boundary that is at the heart of our democracy.
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