Prior restraint order in New York Times case on Project Veritas materials
Parker Higgins
November 18, 2021
A trial court judge has ordered The New York Times to stop disseminating information related to Project Veritas, in a shocking act of both prior restraint and restriction on protected newsgathering activities. Dean Baquet, executive editor of the Times, cited the Pentagon Papers case in calling the ruling "unconstitutional" and noting that it "sets a dangerous precedent." We agree.
Although an attorney for Project Veritas has claimed it is not a prior restraint, it is that and more. Incredibly, it also appears to call for the removal of existing stories, and to restrict the Times from acquiring related material — in other words, from basic reporting.
It is ironic and hypocritical that the group that requested this extraordinary measure is Project Veritas, a group that is currently in the center of a second press freedom firestorm. Earlier this month, FBI agents raided the homes of its founder James O'Keefe and two of his associates, apparently in connection with an investigation into a diary written by President Biden's daughter Ashley.
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As we wrote this week, the press freedom implications of that raid, in the absence of evidence that O'Keefe or Veritas are directly connected to the theft, are profound. The First Amendment and laws such as the Privacy Protection Act limit the government's reach into activities that could be construed as journalistic. Importantly, they apply broadly, not just to a special class of designated journalists.
But that does not remotely excuse them for pursuing a blatantly unconstitutional prior restraint, effectively censoring the Times from reporting on them. And the judge should know better. Issuing such a gag order is a fundamental violation of the First Amendment. Even if the underlying materials were misappropriated or somehow unlawfully obtained by an outside source, the right to report on those materials, and to publish that reporting, is a cherished and long-established cornerstone of press freedom in this country. Indeed, in the Pentagon Papers case itself the paper was reporting on materials that had clearly not been lawfully obtained by their source.
As our colleagues at Reporters Committee for Freedom of the Press have noted, not since that case has such a broad prior restraint order been entered against the New York Times. Now, as then, such a demand offends the most basic principles of press freedom in this country.