New York Times howls after state Supreme Court smacks it

The New York Times, in what has become a rare, unsigned editorial — apparently written December 24, 2021, but published in the print edition on December 27, 2021 — has declared, effectively, that it is above the Rule of Law.

The Times asserted at the end of this editorial: "No court should be able to tell The New York Times or any other news organization — or for that matter Project Veritas — how to conduct its reporting."

The editorial refers to the ruling by New York State Supreme Court justice Charles D. Wood, County of Westchester, that the paper, quoting from the editorial, must "destroy any and all copies of the memos that it has obtained [concerning Project Veritas] and barred it from reporting on the substances of those memos.  The press is free to report on matters of public concern, he wrote, but memos from attorneys to their clients don't clear that bar."

At issue were legal memoranda published by the Times — memoranda protected by the attorney-client privilege.

With the National Football League heading toward post-season playoffs, a football analogy might be useful.  Imagine a football game between The New York Times and Project Veritas.  The contest, pursuant to Times rules, would have no referees and umpires, with the power to call infractions left to the coaches of the Times eleven.  Apparently, when it comes to the First Amendment, the Times sees itself as player and referee, the obvious conflict-of-interest notwithstanding.

The Times mentions "attorney-client privilege" but once — probably to obscure the fact that Judge Wood's decision turns on these three words, not on the misguided attempt by the paper to use the First Amendment as, in the words of the opinion, at page 26, a "'shot cross the bow' of their litigation adversary[.]"

The editorial refused to acknowledge that the Court was persuaded that the legal memoranda covered by attorney-client privilege were obtained irregularly, thereby substantially prejudicing the rights of Project Veritas.  Judge Wood pointed out that the paper said no more than that the legal memoranda at issue were obtained by means of "news-gathering effort."  What does this mean?  Judge Wood then noted that the Times "incredibly admitted here 'no apparent bribery ... was used to obtain the memoranda.'"  The opinion continued, at page 7, "The court finds that Project Veritas has met its burden of showing that the subject memoranda were obtained by irregular means, if not both irregular and improper means."

The court opinion, egregiously distorted by the editorial, went on to note that, by getting and publishing legal memoranda covered by attorney-client privilege — which Judge Wood traced back to 1577 England, the Times "prejudiced the rights of the plaintiff by directly compromising the confidential legal advice rendered by counsel."

The following passage from Judge Wood's opinion deserves to be quoted at length in view of the outrageous attempt by the editorial board of The New York Times to install their paper above the U.S. Constitution.

Further, as Project Veritas correctly points out in its reply brief, there are a whole host of ways that the Times has gained strategic advantage in the litigation with the knowledge it gained from the memoranda, even without being able to admit them into evidence in this [libel] case [against the Times].  The Times witnesses can now craft their responses to questions at a deposition using what they have learned.  The Times' attorneys now have insight to formulate deposition topics and strategy based on the content of the memoranda.  Indeed, in the November 11, 2021 article published at 5:54 P.M., the Times itself noted that the memoranda "give new insights into the workings of [Project Veritas] at a time when it faces potential legal peril in the [Ashley Biden] diary investigation" — and has signaled that its defense will rely in part on casting itself as a journalistic organization protected by the First Amendment.  That "insight" for the Times is unquestionably concomitant prejudice to the plaintiff.

Rejecting the "public concern" argument, Judge Wood stated: "It is not in the public's interest to be privy to the legal advice that this plainitff or any other client receives from its counsel."

I understand this statement by Judge Wood to be the judicial bottom line, a judicial bottom line that The New York Times would like to erase in all its aspects: "Steadfast fidelity to, and vigilance in protecting First Amendment freedoms cannot be permitted to abrogate the fundamental protections of attorney-client privilege or the basic right of privacy."  Or, to provide a meaningful variation on the concluding sentence of its editorial: the Times would apply the First Amendment to subvert the values of the Sixth Amendment to hobble plaintiffs who dare go to court against a powerful newspaper that would tolerate no limits to its power.  The judicial referees must blow the whistle on this flagrant foul.

Perhaps Judge Wood stirred the wrath of the Times' editors with this: "Undoubtedly, every media outlet believes that anything that 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. ... But some things are not fodder for public consideration and consumption."

If The New York Times does not comply with the order of the court on destruction, or limiting use, of the attorney-client material it has, then Project Veritas has until January 28, 2022, to file a notice of non-compliance with the court.  Penalties for non-compliance included costs, fees, and sanctions.

A further penalty comes to mind.  A defendant found guilty of possessing, or publishing, attorney-client privileged information should be required, on pain of being charged with contempt, to name the source of such privileged information.  Wouldn't it be interesting to learn that a "newsgathering effort," for example, was merely the result of the publication of privileged information obtained from a computer snatched and grabbed by the FBI?

Image via Flickr, Public Domain.

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