Court: Supreme Court of the State of New York, County of Westchester
Date Filed: Nov. 22, 2021
Update: During a hearing on Nov. 23, the trial court declined to lift the prior restraint against the New York Times while the court continued to deliberate. A month later, the trial court ordered the Times to immediately turn over or destroy documents in its possession that reflect legal advice from Project Veritas’s attorney. The Times quickly objected to the order, and the appeals court temporarily stayed the portions requiring immediate action.
In support of the Times’ objections to the prior restraint and the order to turn over documents, the Reporters Committee and a coalition of 63 news organizations filed a friend-of-the-court brief on Jan. 12, 2022, urging the appeals court to immediately vacate the lower court’s decision and order. “If upheld,” the media coalition’s brief argues, the lower court’s decision “would create a powerful incentive for litigants to bring frivolous suits in order to suppress news reporting they perceive as unfavorable.”
On Feb. 10, 2022, the appeals court temporarily lifted the trial judge’s order, allowing the Times to publish documents concerning Project Veritas until a formal appeal could be heard by the court. “Prohibiting a news organization from publishing information of public interest is clearly unconstitutional,” said Reporters Committee Executive Director Bruce Brown. “It was unconstitutional on day one, and it’s unconstitutional on day 85, and we’re glad to see it lifted.”
Background: On Nov. 11, 2021, the New York Times published a news story that included excerpts of memoranda prepared by an attorney for Project Veritas. The memoranda excerpted in the Times’s article are unrelated to a defamation lawsuit that Project Veritas filed against the newspaper in 2020.
Less than a week after the Times published the story, Project Veritas asked the state court handling the defamation case to enter a prior restraint against the New York Times, arguing that the memoranda excerpted in the Times’s article were subject to the attorney-client privilege. The court granted Project Veritas’s request, ordering the Times to “refrain from further disseminating or publishing any of Project Veritas’ ‘privileged materials’” in its possession, pending a court hearing on Nov. 23. The order also barred the Times from “further efforts to solicit or acquire” Project Veritas’s “attorney-client privileged materials.”
The Times appealed the order, but the Appellate Division, Second Department denied the newspaper’s request.
Our Position: The court should not impose the restraints contemplated by the order and dissolve the restraints that the order has already imposed.
- The restrictions on publication and newsgathering contemplated by the court’s order — as well as the interim restrictions currently imposed by it — violate the First Amendment’s prohibition on prior restraints.
- The restrictions described in the order would have grave ramifications for journalists’ ability to gather and report newsworthy information in the public interest.
Quote: “This is the first prior restraint entered against the New York Times since the Pentagon Papers, and it is an outrageous affront to the First Amendment,” Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement after the trial court issued its order. “Prior restraints — which are orders not to publish — are among the most serious threats to press freedom. The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.”
Nov. 22, 2021, brief:
Jan. 12, 2022, brief: