A New York judge ordered the New York Times Friday to return and destroy all copies it possessed of legal memoranda prepared for James O’Keefe’s investigative journalism company, Project Veritas, saying it had violated his rights.
The memos were described extensively by the Times in a November article about how O’Keefe’s lawyers advised the company to stay within the boundaries of the law in conducting their work. The publication was unusual, both because it came after the FBI had conducted a bizarre raid on O’Keefe’s home looking for information about Ashley Biden’s diary, and because the Times is currently involved in defending against a defamation lawsuit by O’Keefe brought in New York.
The Times had originally published the memos in full on its website, before removing the link but retaining the article.
As Breitbart News reported at the time, the legal memos could be protected by attorney-client privilege. And Judge Charles D. Wood of the Supreme Court of Westchester County ruled on Christmas Eve that they were, and that the First Amendment rights of the Times to publish information did not mean that it could violate O’Keefe’s right to private communications with his attorney, a right that predates the Constitution and that could only be breached for “strong public policy considerations.”
Moreover, the judge found that O’Keefe’s lawyers had established that the Times had obtained the legal memos through “irregular” means. Though the Times had not revealed exactly how it obtained the memos, it had admitted — “incredibly,” the judge opined — that “no apparent bribery … was used to obtain the memoranda” (original emphasis). And having O’Keefe’s memos, even about other matters, gave the Times an unfair advantage in litigation, “unquestionably” prejudicing the proceeding against him.
Judge Wood noted that preventing the Times from retaining the memos, and possibly publishing information from them, was a form of “prior restraint” on free speech, which is normally not allowed under the First Amendment. However, in this case, the material was protected by the attorney-client privilege and there was no connection to any matter of public concern, he ruled.
While declining to sanction the Times‘ attorneys for violating ethical rules, the judge granted most of O’Keefe’s requests. Within ten days, the judge said, the Times was required it to return all of O’Keefe’s legal memos, including those given to third parties, to his attorneys and destroy all copies, physical and electronic, in its control. The judge also barred the Times from using the legal memos for “any purposes whatsoever,” including further news reporting and litigation.
The Times‘ editorial board responded angrily in an editorial Friday evening titled “A Dangerous Court Order Against the New York Times.” It protested against “a highly unusual and astonishingly broad injunction against a news organization,” and said that the question of whether to publish privileged information did not belong to the judiciary: “[T]he First Amendment is meant to leave those ethical decisions to journalists, not to courts.” It ignored the issue of O’Keefe’s own constitutional rights.
In a critical response to the Times, George Washington University legal scholar Jonathan Turley asked, tongue-in-cheek, whether the FBI should raid the home of Times publisher A.G. Sulzberger, given that the Times had warned O’Keefe that it had the memos and would publish them without his comment — the same warning Project Veritas gave Joe Biden about Ashley Biden’s diary (which it says it obtained legally, and later gave to law enforcement without publishing anything).
The point, Turley said, was not that the government should raid the homes of journalists or publishers, but that everyone knew the FBI would not raid Sulzberger the way it did O’Keefe, for doing the same thing. “That is precisely the problem.”
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