The decision of the New York Times Company to use an editorial to lash out at the judge hearing the libel case levied against it by a competitor, Project Veritas, marks a risky approach to a legal appeal. It looks, in our opinion, like an ex-parte effort by the Times to use its editorial page to influence the very higher court to which the Gray Lady says it will be appealing for relief from a prior restraint issued by the trial judge.

The prior restraint, issued Friday, blocked the Times from publishing certain documents it had obtained regarding Project Veritas’ news-gathering methods. Prior restraints have proved hard to sustain in America. The judge justified his order by noting that the documents in question were, though obtained by the Times, protected by attorney-client privilege and not a “matter of public concern.”

Then again, too, the judge in Westchester County does not appear to be animated by hostility to the press per se or the Times. After all, both sides in the case claim to be protected by the First Amendment. The aim of the judge — Charles Wood — appears to be protecting constitutional due process. He rues “the erosion of the attorney-client privilege” as a “far more imminent concern” than “prior restraints” of the press.

The dispute dates back to September 2020, when Veritas published a “bombshell” video report claiming it had smoked out voting fraud in Minnesota, a battleground state, only to have its reporting dismissed by the Times as Fake News. It called the report a “deceptive video” filled with “unidentified sources and with no verifiable evidence.” Veritas failed to receive a retraction and ended up suing the Times for defamation.

In November the Times quoted the disputed documents in a dispatch headlined “Is It Journalism or Political Spycraft?” The piece reported that Veritas “has worked with its lawyers to gauge how far its deceptive reporting practices can go before running afoul of federal laws.” Goodness gracious. Veritas would hardly be the first publisher who, in advance of publication, consulted lawyers.

Veritas accused the Times of publishing stolen, not to mention privileged, material, and asked Judge Wood to forbid its publication. The Times protested that would amount to a “draconian and disfavored restriction.” Veritas argues the paper had violated “the sanctity of the attorney-client relationship” in a “bare and vindictive attempt to harm and embarrass” its court opponent. That also broke New York’s court procedure law, in Veritas’ view.

We do not intend in this editorial to be endorsing the methods of Project Veritas. The New York Sun’s “Reporter’s Handbook and Manual of Style” marks, under “undercover reporting,” that “no reporter of the Sun is permitted to use disguises, false poses, or dishonesty of any kind in reporting a story and no editor is authorized to instruct a reporter otherwise.” It has a similar rule in respect of fake names.

What’s at issue in this case is whether the Times’ First Amendment rights trump “the integrity of the judicial process,” as Judge Wood terms it. He contends his ruling “is no defeat for the First Amendment.” He says it would be a “Pyrrhic victory for the great principles of free expression” were press freedom misused “to constitutionalize the publication of the private, privileged” documents.

The Times editorial says it’s going to appeal. It reckons that Judge Wood’s ruling “would subvert the values embodied by the First Amendment and hobble the functioning of the free press on which a self-governing republic depends.” Harrumphs it: “No court should be able to tell The New York Times or any other news organization — or, for that matter, Project Veritas — how to conduct its reporting.”

Far be it from us to predict who will prevail (the Times lost an earlier appeal). Yet Veritas might have landed in a win-win situation. For even if Veritas loses the appeal, it has won from the Times an admission that Veritas is among those whom no court should be able to tell “how to conduct its reporting.” So it will be hard for the Times to go to court if someone starts leaking its own privileged documents to Project Veritas.

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Drawing by Elliott Banfield, courtesy of the artist.