Transparency is vital when government investigates newsgathering

Seth Stern

Director of Advocacy

Project Veritas’ future looks uncertain after its CEO resigned last month, calling the right-wing group an “unsalvageable mess.” But if the end is near, Project Veritas’ most enduring legacy might arise not from its infamous hidden camera stings but from a court case over the alleged theft of Ashley Biden’s journal — and its potential impact on constitutional protections for gathering news. 

There are plenty of reasons people don’t like Project Veritas. We’re not shedding tears for them either. But the lack of transparency surrounding the case threatens to chill reporting by all sorts of news outlets, including ones far more respectable than Project Veritas.

FBI agents raided the homes of Project Veritas employees in late 2021 as part of a criminal investigation over the theft of the journal. Project Veritas admits it bought the journal from a source but denies having anything to do with the theft. It’s seeking to end the probe and get back materials seized during the raids, arguing that the First Amendment protects its newsgathering and that investigators have no basis to comb through its privileged records. 

If it’s true that Project Veritas merely bought the journal from the alleged thief after the fact — and that that’s the focus of the investigation — then Project Veritas is right. It should be protected from prosecution under the Supreme Court’s landmark decision in Bartnicki v. Vopper. That case held that publishers are entitled to procure and publish materials their sources obtained illegally, as long as they don’t participate in the crime themselves. It’s certainly fair to question the ethics of digging through a politician’s daughter’s diary for dirt on her father, but unscrupulous doesn’t mean illegal.

But federal Judge Analisa Torres rejected Project Veritas’ First Amendment defenses in December, stating simply that “Here, the Government is investigating whether Project Veritas participated in the theft of the Victim’s journal and the other items. Bartnicki does not protect such conduct.” 

At least Torres’ language is an improvement on a prior report by a “special master,” former federal Judge Barbara Jones, who was appointed to review materials seized during the investigation. Jones had reasoned that “Bartnicki addresses liability for publication of unlawfully obtained information (there, by a source) and does not ‘protect’ unlawful acquisition of information.” It’s quite hard to publish information without first acquiring it. 

Freedom of the Press Foundation (FPF), along with the ACLU and FIRE, had filed an amicus brief encouraging Judge Torres to more accurately state the Bartnicki rule, which, thankfully, she did. But she failed to elaborate on how Project Veritas allegedly participated, and other records that might shed some light are sealed from public view.  

You can’t publish what you can’t possess 

We do know that one of the government’s theories is that Project Veritas illegally possessed and transported stolen property. Hopefully that’s not the “participation” to which Torres alludes. What good is a right to acquire and publish illegally obtained documents without the right to possess and transport them? That exception would swallow the Bartnicki rule whole. 

It’s also concerning that Torres discusses the journal and “other items” interchangeably. There have been reports that, after obtaining the journal, Project Veritas asked its sources to steal more of Biden’s property to prove the journal was actually hers. If that alone were the basis for the investigation, it would be less concerning —  the “other items” were supposedly personal effects, not potentially newsworthy journalistic source materials. 

But Torres’ language implies that the theft of the journal is itself a subject of the investigation, not just a part of the backstory. That means it’s crucial to distinguish whether the government believes Project Veritas was involved in stealing the journal or whether the government considers it criminal if Project Veritas merely obtained it from someone else who stole it. 

It’s somewhat understandable why Torres is being so cryptic. The government has demanded that documents explaining the basis for its investigation — including the application in support of the search warrant authorizing the 2021 raids — remain under seal. And another judge has rejected requests to unseal them, citing Biden’s privacy interests as well as the integrity of the investigation. Torres doesn’t want to be the one to spill the beans.

But it’s been over two years since the raids — you’d hope the government had made some progress on the investigation by now. Surely it could unseal enough information to identify the conduct by Project Veritas that it believes falls outside the First Amendment’s protection, so that other journalists are clear on whether the government intends to adhere to the Bartnicki rule in future cases. That wouldn’t require the government to disclose any private information about Biden — these issues have nothing to do with the content of her diary. 

Heightened need for government transparency

We get it. Journalists are not above the law. And it’s entirely possible Project Veritas did something unlawful that Bartnicki and other legal safeguards for journalists wouldn’t protect. That now-former CEO, Hannah Giles, said the “unsalvageable mess” she left behind was “wrought with strong evidence of past illegality” might be an indication. But so far the government has provided no indication of illegality in this case.

And if all prosecutors have on Project Veritas is that it possessed and transported records someone else stole, then the public should be able to question why the government is putting their tax money, and the Constitution, at risk over such a flimsy case. This time, the subject of the investigation is Project Veritas — an unsympathetic victim — but next time it might be a more reputable news outlet. As the saying goes, bad facts make bad law. 

The investigation of Project Veritas threatens to dissuade journalists from doing important, constitutionally protected work. And, rather than justifying secrecy, that the case involves someone named Biden heightens the need for transparency. People are entitled to know if an administration that proclaims that “journalism is not a crime” makes exceptions when a case hits close to the president’s home. 

The lack of transparency is especially concerning when the government is also refusing to explain its investigation of Florida journalist Tim Burke for accessing interview outtakes on a publicly available website. A respected digital journalist, Burke carries none of the baggage of Project Veritas, but that didn't stop the FBI from raiding his home for seemingly routine online newsgathering. In both cases, the only way for the government to alleviate the chilling effect of its investigations is to publicly explain the bases for its actions.

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