Will the New York Times be silenced by a humble state trial court judge? That’s the question come Tuesday in the libel dispute between the Gray Lady and the nonprofit Project Veritas in a state court. The presiding judge, Charles D. Wood, has himself portrayed it as a case of “a Goliath against a David.”
Waiting in the wings, moreover, is another libel suit against the Times, this one filed by the former governor of Alaska, Sarah Palin. A United States district judge tried to dismiss the case in 2017, only to be overruled by a unanimous panel of the riders of the Second United States Circuit.
In then ordering that Mrs. Palin’s case go to trial, the district judge, Jed Rakoff, bluntly warned that the behavior of the Times editorial page editor at the time, James Bennet, “could support the inference that he was purposely avoiding the truth.”
In Veritas’ case against the Times, the state judge was also blunt. “Here, one of the largest newspapers in the world since Abraham Lincoln was engaged in the private practice of law,” Judge Wood said in March when he refused the Times’ request to dismiss the Veritas case, “is claiming protections from an upstart competitor armed with a cell phone and a web site.”
Last week Veritas scored two legal victories. One was on Thursday when Judge Wood enjoined the newspaper from publishing information it had acquired about the group. The other came the next day, when a state appellate court judge in Brooklyn affirmed the ruling.
Judge Wood ordered the Times to “immediately sequester, protect, and refrain from further disseminating or publishing any of Plaintiff Project Veritas’ privileged materials.” The documents the newspaper obtained had been written by a Veritas lawyer who, according to the Times, advised Veritas how to collect news lawfully while using subterfuges like fake identities.
Thursday’s rare prior restraint against a newspaper stems from a dispute that began weeks before the 2020 presidential election, when Veritas released an exposé claiming voter fraud in a battleground state, only to have the Times dismiss it as, in effect, Fake News.
On September 27 Veritas published what it called a “bombshell investigative video report” alleging “illegal voting practices,” including ballot harvesting, in Congresswoman Ilhan Omar’s district in the Land of Ten Thousand Lakes.
The report was of particular interest to President Trump and his supporters, who were already alarmed about the possibility of election irregularities due to widespread mail-in and absentee voting in the 2020 elections. “This is totally illegal,” Mr. Trump said of the video’s claims.
The Times, however, savaged Veritas’ work. “A deceptive video,” its September 29 report called it, produced by a “conservative activist,” plagued by “unidentified sources and with no verifiable evidence.” The Times added that it “was probably part of a coordinated disinformation effort,” citing researchers at Stanford and the University of Washington.
Veritas called the Times’ report “Baseless and False.” The Times insisted it had “presented well-founded and non-actionable opinions,” adding “whether or not a video is ‘deceptive’ is plainly opinion” and not subject to legal scrutiny. In November 2020, after failing to receive a retraction, Veritas sued for damages and an injunction to bar the Times from further publishing “any statement adjudicated to be defamatory.”
Months of legal wrangling ensued, and in the interim Veritas faced scrutiny from federal authorities on the unrelated question of who stole a diary belonging to President Biden’s daughter Ashley. Veritas says it was given the diary but turned it over to law enforcement, and has not published any of its contents.
Even so, on November 6 the FBI raided the homes of Veritas founder James O’Keefe and two other Veritas employees. The raid sparked objections among parties as diverse as the Wall Street Journal, which saw a possible “civil-liberties abuse,” the American Spectator, and the ACLU. Unless the authorities had evidence Veritas employees stole Ms. Biden’s diary, the ACLU’s Brian Hauss said, “it should not have subjected them to invasive searches and seizures.”
The legal dispute with the Times was escalated a few days later. On November 11, the paper published on its web site memos written for Veritas by Veritas’ own lawyer, Benjamin Barr. The memos were later taken down, but in a related piece, issued November 12 and headlined “Is It Journalism or Political Spycraft?,” the Gray Lady quoted from the memos to show how “the group has worked with its lawyers to gauge how far its deceptive reporting practices can go before running afoul of federal laws.”
Veritas pounced, accusing the Times of publishing material that Veritas said was “obviously stolen” and protected by attorney-client privilege. On November 17, the group asked Judge Wood to forbid its publication, as well as any other similar documents the Times might find, and to remove references to Mr. Barr’s memos in its already-published story.
That, the Times sputtered, would be a “draconian and disfavored restriction” on its ability to cover Veritas. The newspaper, quoting a 1931 United States Supreme Court ruling, added that the main purpose of the First Amendment prohibition on Congress making any law abridging freedom of the press was “to prevent previous restraints upon publication.”
Judge Wood was unswayed, hence Thursday’s order against the Times. Whether that ruling stands depends on Tuesday’s hearing and, possibly, further action in higher courts.
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Governor Palin, meanwhile, accuses the Times of defaming her in a 2017 editorial by insinuating she had incited the shooting in 2011 of Congresswoman Gabrielle Giffords of Arizona. Her cause was bolstered by New York law having had, at the time, a slightly lower hurdle for libel suits than the federal requirement of “actual malice.” That lower hurdle made it harder for the Times to get the case thrown out.
Then, in a break for the Times, New York changed its law to match the federal standard, and in December a federal judge ruled it applied retroactively. Mrs. Palin will now have to prove the Times’s actual maliciousness. Jury selection in Palin v. The New York Times Company begins on January 24.
Drawing by Elliott Banfield, courtesy of the artist.