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Ninth Circuit Dumps Oregon’s ‘Surreptitious Recording’ Law, Handing A First Amendment Win To Project Veritas

from the even-losers-score-the-occasional-win dept

The worst people can make the best case law. That’s the way it works here in the United States, where the court system occasionally works like it should and the old “disagree with what you say but defend your right to say it” axiom is upheld by judges who frequently have to deal with speech probably only the speaker likes.

That’s the case here. A law previously abridged to make exceptions for the recording of serious criminal activity and police offices performing their duties (sometimes the same thing!) has been basically struck down as being a violation of First Amendment rights even when it doesn’t intersect with these two specific exceptions. (via Volokh Conspiracy)

The “worst people” part of the equation is in play here. It involves Project Veritas, a supposed font of journalism that is most known for its hypocrisy and grifter-esque activities. Journalists all do journalism differently, but Project Veritas is basically a far-right tabloid in digital form — an entity that dishonestly edits its recordings to show only the things it wants to put on display. It’s “gotcha” journalism, but “gotcha” journalism that rarely exposes anything more than its contributors’ lack of ethics.

That being said, it can occasionally make a good point. And it does that here, with the end result being the Ninth Circuit (the most liberal of courts, to hear “conservatives” tell it) informing the state of Oregon that its two-party consent requirement simply does not conform with the First Amendment.

This is from the summary of the opinion [PDF]:

Section 165.540(1)(c) of the Oregon Revised Statutes provides that a person may not obtain or attempt to obtain the whole or any part of a conversation by means of any device if not all participants in the conversation are specifically informed that their conversation is being obtained. The law provides two exceptions relevant to this appeal: (1) section 165.540(1)(c) does not apply to a person who records a conversation during a felony that endangers human life, Or. Rev. Stat § 165.540(5)(a); and (2) section 165.540(1)(c) allows a person to record a conversation in which a law enforcement officer is a participant if the recording is made while the officer is performing official duties and meets other criteria.

That’s how the law read prior to this decision. Two carve-outs, both very limited. Project Veritas argued it couldn’t pursue its brand of journalism if it was required to provide notice that conversations were being recorded. The biggest problem with the law is addressed in the next paragraph.

Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the panel held that section 165.540(1)(c) regulates protected speech (unannounced audiovisual recording) and is content based because it distinguishes between particular topics by restricting some subject matters (e.g., a state executive officer’s official activities) and not others (e.g., a police officer’s official activities). As a content-based restriction, the rule fails strict scrutiny review because the law is not narrowly tailored to achieving a compelling governmental interest in protecting conversational privacy with respect to each activity within the proscription’s scope, which necessarily includes its regulation of protected speech in places open to the public.

This means Project Veritas was correct to challenge the law. As much as some of us would have preferred a different entity to lead the way, the law is clearly unconstitutional. Some government entities are protected from the speech of others while other government entities aren’t. At worst, laws regulating speech need to be consistent. This one — thanks to necessary carve-outs secured by other legal action — isn’t.

The first carve-out was enacted in 1955 as a favor to law enforcement, allowing them to wire up people for surreptitious recordings of suspected criminals without seeking a warrant first. The second carve-out arrived six decades later as a response to bullshit arrests of citizens for recording their interactions with law enforcement officers. The rest of the law remained intact. But given the two exceptions, the law is no longer a constitutional law, because it crosses constitutional lines that can’t be completely justified by the state’s interest in protecting the privacy of (only some!) face-to-face conversations that occur in public places.

There’s a dissenting opinion included as well. That opinion says the state could sever the two exceptions to make the law constitutional again. But the majority says this analysis is wrong. While it would make the law more cohesive, it wouldn’t address the underlying problem: that the law effectively neutralizes one particularly powerful form of newsgathering: surreptitious recordings in which subjects may disclose information they wouldn’t if they thought they were being recorded.

It also claims there’s a First Amendment right to express yourself in public without fear of being surreptitiously recorded, which is truly a bizarre assertion:

[U]nlike writing a book or painting a picture, recording a conversation involves the appropriation of others’ speech. To be clear, I agree that Project Veritas’s act of creating a recording is protected speech, but it is important to recognize that the type of speech Project Veritas plans to engage in—unannounced in-person recordings of oral conversations—infringes upon other speakers’ competing interest in conversational privacy

This argument might be more sound if it was the government arguing it could not be prevented from recording any conversation taking place in a public area. But this isn’t a case where the government might be interfering with personal privacy. This is a private entity arguing it has a First Amendment right to record other people’s conversations in public areas. Even though we would all prefer to not be eavesdropped on by other citizens, our options are to go somewhere more private or just deal with the fact that anything that can be overheard in a public area can be recorded. This means we should be able to record any public official performing their duties in public. And this means Project Veritas should be able to eavesdrop on protesters, responding officers, and any public official who chooses to speak (even conversationally) in public.

And, as much as I personally dislike Project Veritas, this analysis by the dissent seems to claim that journalistic (or accountability efforts) should be subjected to more government regulation simply because the means of distribution have been democratized.

In other words, in Project Veritas’s view, having one’s oral communication secretly recorded imposes no greater burden on privacy than merely having the same comments heard—never mind that recorded comments can be forwarded to vast audiences, posted on the internet in perpetuity, selectively edited, presented devoid of context, or manipulated using modern technology.

This doesn’t mean speech should be more regulated. The same distribution channels — this so-called Wild West Internet — is freely usable by those whose words and actions have been twisted (or at least misrepresented) by entities like Project Veritas, whose only real goal is owning the libs by any means necessary. Its work speaks for itself. And there have already been plenty of exposés of its unsavory tactics and deceptive editing. This debunking was achieved without the government’s “help” or any additional incursions on First Amendment rights.

The majority is correct: the law, as written, subtracts protections and adds government interference. And as such, it cannot be allowed to stand.

Filed Under: 9th circuit, journalism, oregon, phone recordings, two party consent
Companies: project veritas

from the thank-you-anti-slapp-laws dept

Project Veritas, the faux conservative group of pranksters pretending to be journalists likes to pretend that they’re “free speech” supporters. But they’re not. They appear to really only support their own free speech, and have a much more flexible view of free speech when it includes speech critical of themselves. Over the past few years, Project Veritas (PV) has gotten fairly aggressive in suing organizations that are critical of PV. That’s… not very free speechy. PV has tried to silence the NY Times, has sued CNN, and last year it sued Stanford and the University of Washington over a blog post debunking some of the usual nonsense from PV.

A few months back, we reported that CNN won its case against PV. But, also, back in May we missed that a judge also dismissed PV’s case against Stanford. Basically, saying mean things about PV is not defamation, because opinions aren’t defamation tough guys:

Viewing the totality of the circumstances, the Court concludes that the phrases in the Blog Post that Project Veritas challenges as defamatory are nonactionable opinions. In considering the medium and context, “statements of opinion are expected to be found more often in certain contexts, such as editorial pages or political debates.” Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986). Here, the statements regard whether claims of election fraud were based on misleading or inaccurate information. Throughout the 2020 presidential election, statements regarding election fraud often resulted in heated and emotional discussions. See Camer, 45 Wn. App. at 41 (determining that an article about issues resulting in heated and often emotional discussions constituted nonactionable opinion). This context suggests that the Blog Post is providing opinions.

Additionally, “[t]he court should consider the entire communication and note whether the speaker qualified the defamatory statement with cautionary ‘terms of apparency.’” Life Designs Ranch, 191 Wn. App. at 331 (quoting Dunlap, 105 Wn.2d at 539). Project Veritas challenges only a couple phrases of the Blog Post as defamatory and agrees that the majority of the Blog Post “purported to be a technical study of whether and how prominent conservatives had worked to promote and ‘aggressively spread’ the [Video Report].” Compl. at ¶ 82. Indeed, the Blog Post focuses on describing when posts about the Video Report were made on social media, who made them, and how influencers strategically worked to gain visibility for the Video Report. See EIP Blog Post. Thus, not only were the allegedly defamatory portions of the Blog Post an exceedingly small piece of the Blog Post, they also did not relate to the main subject of the Blog Post. That Project Veritas fails to take issue with the Blog Post as a whole, and instead cherry picks just a couple phrases as defamatory, does not weigh in its favor. Furthermore, EIP qualified one of the challenged statements by saying that it had determined that the Video Report was part of a disinformation campaign. This language constituted a “term of apparency” and signaled to the reader that the statement was one of opinion rather than fact….

The specific words used in the Blog Post were also indicative of them being opinions because they are incapable of defamatory meaning. Words that have imprecise meaning are incapable of being defamatory because they are not provably false. Paterson, 502 F. Supp. 2d at 1134–35. Courts have found phrases like “rip-off,” “fraud,” and “unethical” are nonactionable because of their imprecise meaning and because they are susceptible to many interpretations. See id. at 1135 & n.2. In this case, one cannot determine the truth or falsity for the phrases that Project Veritas alleges to be defamatory. For example, the statement that the Video Report is “misleading” or constitutes “disinformation” is capable of many interpretations and thus cannot be proven true or false. See Phantom Touring, Inc v. Affiliated Publ’ns, 953 F.2d 724, 728 n.7 (1st Cir. 1992) (“Even the less figurative assertion that appellants are ‘blatantly misleading the public,” . . . is subjective and imprecise, and therefore not capable of verification or refutation by means of objective proof.”). The statement that the Video Report had been “debunked” is similarly incapable of being proven true or false.

Anyway, that ruling actually came down in May, but we get to revisit it now, because last week, the judge took the next step. Because it was determined that the original lawsuit by PV was a SLAPP under Washington’s anti-SLAPP law, that meant that PV could be on the hook for Stanford’s legal fees… and that portion of the case has concluded with… PV being told to pay up to the tune of $149,596.90.

For what it’s worth, PV tried to get around having to pay by arguing that Washington’s anti-SLAPP’s fee shifting provisions can’t be applied in federal court. The court dismisses this argument in a footnote, and says that the fees requested by Stanford are reasonable under the law, and makes no adjustment on Stanford’s requested about.

Anyway, it’s pretty incredible that an organization that holds itself out as supporting free speech would ever try to argue that an anti-SLAPP law can’t apply in federal court. That’s just an undeniably anti-free speech position to take. Again, this is just a reminder that PV, for all its lofty talk about free speech, seems to be the same kind of anti-speech, pro-censorial organization like so many others when the speech is about itself.

Of course, this story is yet another reminder that strong anti-SLAPP laws are one of this country’s best protections for free speech, and against censorial thuggery. This is also why we need better state anti-SLAPP laws in every state AND a strong federal anti-SLAPP laws. If PV were an actual free speech organization it would be supporting such laws — not trying to tear them down and filing SLAPP suits.

Filed Under: anti-slapp, attorneys fees, defamation, fee shifting, slapp
Companies: project veritas, stanford

Project Veritas Loses Its Defamation Lawsuit Against CNN Because The Truth Is Just As Damning As What CNN Said

from the you-played-yourself.gif dept

Very serious laughably ridiculous buffoon stunt journalists, Project Veritas, had its account banned from Twitter a year ago, a couple months before its founder James O’Keefe also had his own account banned as well. O’Keefe vowed to sue CNN and Twitter over the bans, and these plans seem to be going about as well as a standard Project Veritas special report: people too clueless to understand reality think it means something, but it falls apart under scrutiny. Just days after the threat to sue, Project Veritas did, in fact, sue CNN for defamation.

The core claim was that CNN’s Ana Cabrera had tweeted that the PV account was banned for “spreading misinformation” when the truth was that it was banned for violating policies on sharing “other people’s private information without consent.” Leaving aside the difference between a thoroughly reported news article and a throwaway tweet, this… seems like a weird thing to sue over unless (like Project Veritas) you are really, really, really infatuated with attacking anyone who claims you traffic in misinformation.

And, this all went pretty much the way that you might expect, with a judge now dismissing the case, noting that even taking Project Veritas’ complaint at face value, it doesn’t fucking matter because the real reason that PV’s account was banned was just as bad as the reason Cabrera claimed:

While Project Veritas asserts that CNN’s statements implying that Project Veritas was banned from Twitter for spreading misinformation maligns its “journalistic integrity,” … the pleaded truth of being accused of violating a policy aimed at “protect[ing] individuals from coming to physical harm as a result of their information being shared” similarly maligns a journalist’s professional reputation. In essence, “[s]ubstitute the true for the false . . . and the damage to [plaintiff’s] reputation would be no less.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993). Furthermore, while there is some difference between violating a policy by providing incorrect or misleading information and violating a policy by truthfully providing someone’s private information (and potentially exposing a person to harm), the distinction is not enough to make the statement at issue actionable as both violations are similarly damaging to the journalist’s reputation. Project Veritas’s allegations and arguments do not plausibly suggest that the truth (as pled in the Complaint) would have a different effect on the mind of the average reader in terms of the reputational harm.

Basically, the judge is noting that the “harm” here (if any) was no different if Cabrera had accurately described the reason PV was banned, because the reason they actually were banned was pretty bad in itself. And all this really accomplishes then (beyond being a SLAPPy nuisance) is to reinforce the knowledge that PV was banned for violating Twitter’s policies, in this case, revealing private information they should not have.

Filed Under: ana cabrera, content moderation, defamation, free speech, policy violations
Companies: cnn, project veritas, twitter

Court (For Now) Says NY Times Can Publish Project Veritas Documents

from the prior-restraint? dept

We’ve talked about the hypocrite grifters who run Project Veritas, who, even when they have legitimate concerns about attacks on their own free speech, ran to court to try to silence the NY Times. Bizarrely, a NY judge granted Project Veritas’ demand for prior restraint against the NY Times falsely claiming that attorney-client material could not be published.

The NY Times appealed that ruling and now a court has… not overturned the original ruling, but for now said that the NY Times can publish the documents, saying that it will not enforce the original ruling until an appeal can be heard. This is… better than nothing, but fully overturning the original ridiculous ruling would have been much better. Because it was clearly prior restraint. But, at least for now, the prior restraint will not be enforced.

Still, the response from Project Veritas deserves separate comment, because it’s just naively stupid:

In a phone interview on Thursday, Mr. O?Keefe said: ?Defamation is not a First Amendment-protected right; publishing the other litigants? attorney-client privileged documents is not a protected First Amendment right.?

While it’s accurate that defamation is not protected by the 1st Amendment, he’s wrong that publishing attorney-client communications is — in most cases — very much protected. He’s fuzzing the lines here, by basically arguing that because Project Veritas is, separately, suing the NY Times, that bans the NY Times from publishing any attorney-client privileged material it obtains via standard reporting tactics.

But that fuzzing suggests something that just isn’t true: that there’s some exception to the 1st Amendment from publishing attorney-client materials. That’s wrong. The attorney-client privilege is with respect to having to disclose certain documents to another party in litigation. If you can successfully show that the documents are privileged, they don’t need to be disclosed to the other party. That’s the extent of the privilege. It has no bearing whatsoever on whether or not someone else obtaining those materials through other means has a right to publish them. Of course they do and the 1st Amendment protects that.

And, I should just note, that considering Project Veritas’ main method of operating is trying to obtain private documents, or record secret conversations, it is bizarre beyond belief that Project Veritas is literally claiming that private material has some sort of 1st Amendment protection. Because that seems incredibly likely to come back and bite Project Veritas at a later time. Of course, considering they’re hypocritical grifters with no fundamental principles beyond “attack people with views we don’t like,” I guess it’s not surprising that their viewpoint on free speech and the 1st Amendment shifts depending on who it’s protecting.

Filed Under: 1st amendment, attorney client privilege, james o'keefe, new york, prior restraint
Companies: ny times, project veritas

Confused Judge Grants Project Veritas' Prior Restraint Against The NY Times

from the that's-bad dept

This is so bizarre. Last month we wrote about how the incredibly hypocritical oafs at Project Veritas were, on the one hand, screaming about their own press freedoms (for potentially legitimate reasons) while simultaneously trying to get a prior restraint order against the NY Times using the famed press silencers at the censorial thuggish law firm Clare Locke. Somewhat incredibly, on Christmas Eve a New York Supreme Court judge granted the request.

At issue is that the NY Times apparently got access to some memos that Project Veritas’s lawyer had sent to Project Veritas, apparently about how Project Veritas’ brand of secret filming and selectively edited “journalism” might violate various laws. PV ran to court to stop the Times from publishing anything from the documents, and got a ridiculously broad order that could be read to say that the NY Times couldn’t even continue reporting on PV. Incredibly, Project Veritas, whose entire genre of “reporting” revolves around obtaining information through deceit, claimed that the NY Times could be stopped under a law that allows for the “suppression of information improperly obtained.” Can’t see how that might come back to bite PV, now.

The NY Times rightly pointed out that this order was clearly prior restraint and unconstitutional under the 1st Amendment. The complicating factor here is that the censorial hypocrites at PV are suing the NY Times for alleged defamation, and claim that the information obtained by the NY Times reporters “relates directly” to the case at hand. The Times, on the other hand, pointed out that the information in the memos they obtained “have nothing to do with the subject matter in the underlying defamation action” and actually predate the PV video at issue in that case. More importantly, the NY Times noted (correctly!) that a news organization cannot be prevented from reporting on newsworthy info, even if that information is attorney-client privileged info, so long as they came by it via the news gathering process (i.e., not via discovery and the legal process in the lawsuit).

And, here, it’s impossible that the documents were obtained via discovery because discovery hasn’t even happened yet in the lawsuit.

But the judge, Charles Wood, says that Project Veritas “has met is burden of showing the subject memoranda were obtained by irregular means, if not both irregular and improper.” The judge goes on a long digression about the importance of attorney-client privilege, but seems to totally miss the fact that it only matters with regards to being able to deny certain discovery requests, and that a third party news organization is simply not bound by the attorney-client privilege of a lawyer and a client if the material is obtained through their reporting.

The court then addresses the 1st Amendment issues here… by basically brushing them off and saying it’s no big deal. It goes through a long discussion on prior restraint and how the Supreme Court has rejected attempts at prior restraint in the past, but then seems to think that attorney-client privilege trumps that. It’s bizarre. Even more bizarre is a weird aside about how our smart phones “beep and buzz” with information the judge believes is unimportant.

In light of these principles of law, the court rejects the Times’ position that Project Veritas’ attorney-client communications are a matter of public concern. Undoubtedly, every media outlet believes that anything it publishes is a matter of public concern. The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half. Our smart phones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some things are not fodder for public consideration and consumption. These memoranda, and hundreds of thousands of similar attorney-client privileged documents that are in homes, offices, and businesses in every village, town, and city in this nation are only between an attorney and a client, and it does not matter one bit who the attorney and the client are. While the content of the advice is irrelevant to this court’s analysis, in this case, the subject memoranda here contain typical, garden variety, basic attorney-client advice that undoubtedly is given at nearly every major media outlet in America, including between the Times and its own counsel.

A client seeking advice from its counsel simply cannot be a subject of general interest and of value and concern to the public. It is not the public’s business to be privy to the legal advice that this plaintiff or any other client receives from its counsel.

So, a few things about this. First of all, simply having a judge decide on his own whether or not a document is in the public interest raises its own 1st Amendment concerns, because it’s substituting the judge’s opinion for the news organization’s editorial decision-making process — and seems wide open to vast abuses to suppress speech. Judge Wood’s own analysis here shows what a fraught 1st Amendment path he is taking.

Furthermore, if we compare this ruling to the Pentagon Papers case, it seems to suggest that “garden variety, basic attorney-client advice” somehow can be subjected to prior restraint, whereas things that might “threaten national security” cannot be. And that… makes no sense at all. The 1st Amendment has a very narrow set of limited exceptions and “attorney-client privileged material” is not one of them.

Finally, while “typical, garden variety, basic attorney-client advice” may not be newsworthy in most cases, there absolutely are cases when they can be newsworthy and in the public interest and that includes the scenario in this very case — where the advice raises significant legal concerns about the methods PV used to manufacture a story that received national attention and potentially had wider ramifications. But, again, the newsworthiness of that should be up to the news organization and not the state, or else you don’t really have freedom of speech.

Judge Wood also seems to think (extremely incorrectly) that the 1st Amendment allows for a balancing test between the Constitution and NY state law. This is just wrong.

Here, the court’s protective order does not act as impermissible prior restraint on the Times. As important as the First Amendment’s protections against prior restraint is, on the present facts, the erosion of attorney-client privilege is a far more imminent concern.

Hilariously, given that this effort is to protect Project Veritas, the judge cites another case that suggests “hit and run journalism” gets less 1st Amendment protections:

‘Hit and run’ journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid dirver’s license.

This is a very weird quote from a strange 1979 case but if you think more carefully about it, the statement makes no sense at all.

Either way, the NY Times has already said that it will be appealing this decision (confusingly for those not deeply enmeshed in these issues, NY’s “Supreme Court” is effectively the district court level in the state, so its rulings can be appealed):

A.G. Sulzberger says NYT will appeal immediately: "In defiance of law settled in the Pentagon Papers case, this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting." https://t.co/pW1G6iqylt

— Caleb ?Cal? Pershan (@calaesthetic) December 24, 2021

I would be amazed if, on appeal, this blatant prior restraint is not tossed out as a violation of the 1st Amendment.

Filed Under: 1st amendment, attorney-client privileged material, charles wood, prior restraint
Companies: ny times, project veritas

Hypocrite Grifters Project Veritas Scream About Press Freedom, Then Run To Court To Silence The NY Times

from the not-how-it-works dept

So, just yesterday we wrote about how the FBI’s raid of Project Veritas’s founder and a few associates was concerning from a press freedom standpoint — and that you should be concerned even if you believe that Project Veritas are a bunch of dishonest grifters. However, beyond being a bunch of dishonest grifters — who still deserve press freedoms — it appears that Project Veritas are also a giant bunch of hypocrites.

All week they’ve been grandstanding about press freedoms… while at the same time they hired the law firm of Clare Locke — a firm that brags about silencing the press — to try to silence the NY Times. Incredibly, so far it has worked. Project Veritas and Clare Locke successfully got a judge in NY to issue a ridiculously broad order requiring that the NY Times delete information it had in its possession and then stop reporting on certain aspects of Project Veritas’ behavior.

This is straight up prior restraint.

ORDERED that, until such time as this Court resolves the order to show cause, defendant The New York Times shall immediately sequester, protect, and refrain from further disseminating or publishing any of plaintiff Project Veritas? privileged materials in the possession of The New York Times, or its counsel, and that The New York Times and its counsel shall cease further efforts to solicit or acquire plaintiff Project Veritas? attorney-client privileged materials.

The prohibition on distributing materials is concerning enough, but the demand that they “cease further efforts to solicit or acquire” material about Project Veritas is literally banning reporting. That’s clearly a 1st Amendment violation. Basically every lawyer that Law & Crime spoke to notes that this is blatant prior restraint.

Libby Locke from Clare Locke (who once insisted to me that anti-SLAPP laws harmed people) put out a statement that misrepresents the law to the point of being laughable:

?A prior restraint is just that?a restraint before publication. Here, The Times already published Veritas? attorney-client privileged communications, and the interim order and more permanent relief sought are narrowly tailored to that misconduct,? Locke told Law&Crime in an email. ?Moreover, even if this were a prior restraint (it is not), there are certain circumstances where the law permits a court to enjoin the publication of materials before it happens?including, for example, by a protective order in litigation between litigants to prevent the use and dissemination of attorney-client protected materials. And this is no greater restraint on speech than the myriad protective orders the Times has been subject to in other litigation proceedings.?

This statement is stunning in its own way. First, it is wrong about prior restraint (and misstates the full extent of the order). Again, Law & Crime spoke to a lawyer who knows better:

Former federal prosecutor Mitch Epner, who has consulted with media organizations on First Amendment and copyright issues and is now of counsel with Rottenberg Lipman Rich PC, told Law&Crime in a phone interview that Project Veritas?s counsel has it wrong on the meaning of prior restraint?and that?s just what this order is.

?Even though it?s only an interim order, it is clearly a prior restraint, and it strikes at the very heart of the First Amendment protection of the U.S. to publish,? Epner said in a phone interview.

As for Locke?s definition, Epner said: ?It is not the way people understand the term prior restraint.?

?It is a restraint of what can be published before there has been a ruling on the merits,? he noted.

Furthermore, the rest of Locke’s comments are stunning in that she more or less admits that prior restraint is fine in the second part.

But, there’s a much bigger point here. This is Project Veritas demanding that a media organization not publish content that it had received. Project Veritas. An organization whose entire existence is based around trying to obtain material it’s not supposed to have or by honey trapping and surreptitiously recording people. What kind of fucked up organization would try to set a precedent that could then easily be turned around and used against its own practices?

The NY Times is very, very likely to appeal, and a NY appellate court is likely to toss this out very, very quickly — and hopefully the court provides Justice Charles Wood with a strong talking to about prior restraint and the 1st Amendment. Justice Wood should know this already — because it’s one of the most basic things about the 1st Amendment that every judge should know, but also because the NY Times told him directly in a letter filed earlier in the day.

Plaintiff?s proposed Order to Show Cause requests, among other things, that the Court enter an order directing The Times to ?refrain from further disseminating or publishing? information that Project Veritas asserts, without evidence, that The Times obtained improperly. Such an order is, on its face, the paradigmatic example of an unconstitutional prior restraint. See, e.g., Alexander v. United States, 509 U.S. 544, 550 (1993) (?Temporary restraining orders and permanent injunctions?i.e., court orders that actually forbid speech activities?are classic examples of prior restraints.?); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971) (vacating order ?enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois? as impermissible prior restraint); Vance v. Universal Amusement Co., 445 U. S. 308, 311, 317 (1980) (per curiam) (striking down, on prior restraint grounds, Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction prohibiting future exhibition of films that had not yet been found to be obscene); Porco, 116 A.D.3d at 1266.

Before the imposition of such a draconian and disfavored restriction, The Times should have the opportunity to be heard. The Times therefore respectfully requests that the Court hold in abeyance Plaintiff?s request to enter an Order to Show Cause in order to permit The Times to file a response in opposition to Plaintiff?s request no later than November 24, 2021. As our forthcoming opposition will make clear, Plaintiff?s request is factually and legally deficient. The request lacks merit and seeks relief that the Court cannot and must not grant.

Rather than do that, Justice Wood just granted Project Veritas’ blatantly censorial demands.

I still think that Project Veritas’s own rights deserve protecting, and remain concerned about the FBI raid. But Project Veritas is no defender of free speech itself. It is a censorial, thuggish, grifting, hypocritical organization and everything it does should be seen through such a lens.

Filed Under: 1st amendment, freedom of the press, injunction, journalism, libby locke, prior restraint, reporting
Companies: clare locke, ny times, project veritas

Yes, Even If You Think Project Veritas Are A Bunch Of Malicious Grifters, FBI Raid Is Concerning

from the press-freedom-matters dept

I am no fan of Project Veritas. They appear to be a group of malicious grifters, deliberately distorting things, presenting them out of context to fit (or make) a narrative. Even so (or perhaps, especially so), we should be extremely concerned about the FBI’s recent raid on Project Veritas’ founder James O’Keefe and two of his colleagues.

The FBI and DOJ say they’re investigating the apparent theft of a diary belonging to Joe Biden’s daughter, Ashley, which later ended up in Project Veritas’ hands. But, as we’ve discussed for many years, there are serious 1st Amendment questions involved when the government is raiding the homes of journalists and seizing their computers, phones, and other records. I’m assuming that some of you are going to say that this shouldn’t matter because O’Keefe and Veritas aren’t “real journalists,” and we’ll get to that argument later. But the simple fact is that after many years (and multiple administrations lead by both parties) in which the DOJ felt free to collect journalist records, earlier this year, we were told that the DOJ was finally going to no longer sweep up journalist records (though even then it noted that didn’t apply in cases where the journalists themselves were targets of a criminal investigation — as was the case here).

However, unless there’s really strong evidence indicating that Project Veritas was involved in the actual theft of the diary, if the organization was merely the recipient of that diary, then these raids raise many, many concerns about violations of press freedoms and the use of law enforcement to intimidate the press.

Many others seem to be similarly concerned, as this is raising a lot of alarm bells for those who work on press freedom issues:

?This is just beyond belief,? said University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press. ?I?m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.?

The ACLU is also quite concerned:

?Project Veritas has engaged in disgraceful deceptions, and reasonable observers might not consider their activities to be journalism at all. Nevertheless, the precedent set in this case could have serious consequences for press freedom. Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures. We urge the court to appoint a special master to ensure that law enforcement officers review only those materials that were lawfully seized and that are directly relevant to a legitimate criminal investigation.?

The Committee to Protect Journalists is equally worried:

?While we do not endorse some of the tactics Project Veritas employs, the FBI?s recent raids on the organization?s founder and his associates represent a concerning overreach by law enforcement,? said CPJ U.S. and Canada Program Coordinator Katherine Jacobsen. ?The government must provide a clear link between members of Project Veritas and alleged criminal activity before searching their homes for information about source material. Conducting raids without this kind of link sets a dangerous precedent that could allow law enforcement to search and confiscate reporters? unpublished source material in vague attempts to identify whistleblowers.?

But, yes, as mentioned earlier, I’m sure some people are saying that Project Veritas and James O’Keefe aren’t “real” journalists. And, I’m certainly sympathetic to the idea that O’Keefe makes a mockery of actual journalism with his out of context and extremely misleading releases. But, part of having a “freedom of the press” means not allowing the government to determine who is and who is not press. Because that power alone creates massive limits on a free press. If the government can unilaterally decide that certain organizations are not “really” journalists, then that enables them to punish any news organization they want. Think how a Trump administration might use that power against the NY Times or CNN.

It’s okay to call out Project Veritas for their ridiculous and misleading reporting. You can personally believe that they are doing dangerous work. But the government cannot unilaterally declare them not to be press in order to raid homes and seize notes — because if they can, they can do that to any journalist.

Another bit of pushback I heard on this was that mere “receipt of stolen goods” is, itself, a crime, and that somehow makes it okay to raid O’Keefe and his colleagues. Again, though, that would set a hugely dangerous precedent. Remember, the Nixon administration went after the NY Times and the Washington Post for receiving the Pentagon Papers from Daniel Ellsberg. Tons of whistleblowers and leakers hand over documents to journalists that they have no legal right to copy or take (and they may face legal consequences in doing so). But the media who receives those works should not be subject to raids and intimidation from the government. Even if they’re a bunch of ridiculous grifters intent on publishing utter nonsense.

Filed Under: 1st amendment, ashley biden, doj, fbi, free speech, james o'keefe, journalism, raids, reporting, source protection
Companies: project veritas

James O'Keefe Sues Twitter For Defamation… For Shutting Down His Account

from the this-is-not-going-to-go-well dept

You may have heard recently that James O’Keefe, the guy behind “Project Veritas” — a propaganda outlet whose brand of highly edited, surreptitiously recorded videos are often followed by actual media having to come in and debunk the misleading bits — had his Twitter account shut down recently. He immediately threatened to sue Twitter, and last week he actually did so.

The crux of the lawsuit is that because a reporter claimed that Twitter told him O’Keefe’s account was banned for “operating fake accounts,” that’s defamation. The lawsuit notes that back in February, Twitter also banned the Project Veritas account. In that case, it was because one of Project Veritas’ videos allegedly revealed “private information” which violated its rules. In that case, the private information (according to the lawsuit) was that the video showed the house number of a Facebook executive who they were trying to interview. In the lawsuit, O’Keefe’s lawyers try to make a big deal of the fact that real media organizations sometimes show where people live as well, leaving out the fact that this does not matter one tiny bit. Twitter sets the rules on its own platform, and when it’s making decisions on the rules, they often involve context (and that context may include Project Veritas’ long history).

But the key part of the lawsuit is the claim that because a Twitter spokesperson told the media that O’Keefe violated its policy against “fake accounts,” and O’Keefe claims he didn’t operate fake accounts, this is defamatory. The arguments in the case are going to make some of you laugh:

The false accusation that Mr. O?Keefe operated ?fake accounts? is particularly damaging for Mr. O?Keefe because Mr. O?Keefe is a journalist. As such, his reputation for transparency and accurate reporting is fundamental to his profession.

That is… uh… not quite what many people would call Mr. O’Keefe’s reputation.

By accusing Mr. O?Keefe of ?operating fake accounts,? Twitter was directly attacking Mr. O?Keefe?s fitness for his profession by accusing him of ?misleading others? and by effectively running a disinformation outlet akin to the much-discussed ?Russian interference?/disinformation bots that plagued the 2016 election and which inspired some political operatives to engage in similar tactics in 2017….

Indeed, Twitter?s entire ?fake accounts? policy, which it accused Mr. O?Keefe of violating by stating that he ?operat[ed] fake accounts,? stems from the Russian disinformation campaign.

Thus, by claiming Mr. O?Keefe operated ?fake accounts,? Twitter was saying Mr. O?Keefe could not be trusted as a journalist because he was ?misleading others? via disinformation in the manner the Russian government is widely accused of doing to interfere in the U.S. political process.

That all sounds nice. But if you actually read the Twitter policy in question, it’s a lot broader than O’Keefe’s lawyers make it out to be. It’s quite broad and has to do with a lot more than Russian disinfo accounts. Here’s just part of it:

You may not use Twitter?s services in a manner intended to artificially amplify or suppress information or engage in behavior that manipulates or disrupts people?s experience on Twitter.

We want Twitter to be a place where people can make human connections, find reliable information, and express themselves freely and safely. To make that possible, we do not allow spam or other types of platform manipulation. We define platform manipulation as using Twitter to engage in bulk, aggressive, or deceptive activity that misleads others and/or disrupts their experience.

Platform manipulation can take many forms and our rules are intended to address a wide range of prohibited behavior, including:

* commercially-motivated spam, that typically aims to drive traffic or attention from a conversation on Twitter to accounts, websites, products, services, or initiatives; * inauthentic engagements, that attempt to make accounts or content appear more popular or active than they are; * coordinated activity, that attempts to artificially influence conversations through the use of multiple accounts, fake accounts, automation and/or scripting; and * coordinated harmful activity that encourages or promotes behavior which violates the Twitter Rules.

In other words, it’s quite broad. And lots of people have been caught up in similar account bans over the past few years, including the Krassenstein brothers who became famous for their anti-Donald Trump tweets, as well as a weird (and somewhat silly) “non-partisan” political party. So, for anyone arguing that this policy is used just against “conservatives,” the evidence certainly suggests otherwise. It also does not at all suggest that anyone dinged under this policy is engaged in Russian-style disinformation campaigns.

Like so many of these lawsuits, this one appears to be more performative than serious. It’s not difficult to predict how this will end up.

Filed Under: content moderation, defamation, fake accounts, first amendment, free speech, james o'keefe, policies
Companies: project veritas, twitter

Six More J20 Protest Prosecutions Dismissed As Gov't Admits To Hiding Exculpatory Evidence From Defendants

from the self-defeating dept

The government has dismissed more defendants from the J20 protest prosecution. A mass prosecution that ensnared journalists and activists — along with those who may have actually participated in damaging property — has gradually disintegrated as the government has undermined its own efforts again and again. (To say nothing of the multiple times the government tried to undermine the prosecution, starting with the mass First Amendment incursions of arresting journalists, before heading on to broadsides of the Fourth thru Sixth Amendments.)

The government isn’t done blasting holes in its feet just yet. Alan Pyke, reporting for ThinkProgress, says the prosecutorial fiasco the government is trying to abandon contained a host of Constitutional violations.

Federal prosecutors hid scores of videos from the hundreds of anti-Trump demonstrators they charged with serious felonies in an unprecedented crackdown on Inauguration Day protests, defense lawyers alleged in an overnight filing Wednesday.

The new accusations exacerbate an existing crisis for prosecutors, who already admitted last week to hiding one 55-minute video and misrepresented edits they made to another video. That initial screw-up, known to lawyers as a Brady violation, already jeopardized the case.

But that initial, single Brady violation is actually part of a much broader pattern of evidence-concealing, the lawyers now say. The government has concealed another 69 separate recordings — three audio files and 66 videos — of planning meetings for the Inauguration protests known as #DisruptJ20, defense lawyers say in the motion.

The government had an unlikely ally in its prosecution — right-wing, half-arsed sting operation Project Veritas. The prosecution relied on videos supposedly containing protesters discussing plans for mayhem and violence. This is what the government needed to rope 50-some protesters in on conspiracy charges, something it could salvage when tying defendants to actual violence or destruction proved impossible.

But the videos the government obtained — but did not turn over to the defense — showed something else.

The recordings, which were made by employees of the right-wing Project Veritas, purportedly show defendants discussing de-escalation tactics and their intent not to initiate physical violence with anyone unless they are attacked first. The prosecutor had previously told the judge that no recordings existed from the meetings where the newly revealed audio and videos were made.

The government now says it will not use any videos from Project Veritas in the trials of the 59 remaining defendants. This gesture may be too little, too late. It’s also completely self-serving. If the government ditches the Veritas videos, the defense will struggle to have charges dismissed because of the government’s Brady violation. The court may rule the violation only concerned evidence the prosecution isn’t using — a “no harm, no foul” ruling that lets the government have its Brady violations and its prosecutions too. Hopefully, the court will take note of the government’s attempt to have it both ways and deny it in full.

Filed Under: brady violation, doj, free speech, j20, protests, withholding evidence
Companies: project veritas