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The Editorial Board: Higher courts must reject downstate judge's unconstitutional order of prior restraint

The Editorial Board: Higher courts must reject downstate judge's unconstitutional order of prior restraint

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Project Veritas New York Times

A downstate trial court judge has violated established law by ordering the New York Times not to publish information it has about the organization Project Veritas.

This, perhaps, is a price New Yorkers pay for the state’s reckless and politicized method of choosing judges to sit on the bench, there to inflict their sometimes dubious pronouncements.

A trial court judge last month violated established First Amendment law by ordering the New York Times not to publish documents that had been prepared by a lawyer for Project Veritas. The far-right organization is known for publishing sometimes misleading videos and other disinformation aimed at targets such as Planned Parenthood, the Association of Community Organizations for Reform Now (ACORN) and others.

Then it got worse. Last week, in a follow-up ruling affirming his order, Justice Charles D. Wood of State Supreme Court in Westchester County also ordered the newspaper to immediately turn over any physical copies of the Project Veritas documents in question, and to destroy any electronic copies in its possession.

The Times has said it plans to appeal the decision and will ask for a stay.

Project Veritas argued that its case fits an exception to the rules against prior restraint of the press regarding documents that may be used in the course of litigation. The exception is meant to acknowledge the role of courts in deciding when and how disclosures are used. But it doesn’t appear to apply in this case.

The organization also claims the memos are protected by attorney-client privilege and that the Times has an ethical obligation to return them to the organization and not to publish them.

But the First Amendment doesn’t work that way. As the Times pointed out in its own editorial, news organizations routinely make ethical judgments about whether to disclose information from governments, corporations and other newsworthy subjects. The First Amendment leaves those decisions to journalists. Without that guarantee, courts would be pressed into instructing news organizations how to report. It’s not illegal, unnecessary and inappropriate.

The Times reports that the litigation stems from a lawsuit that Project Veritas filed against the newspaper last year. The organization claimed the Times libeled it in an article about a video that claimed rampant voter fraud in Minnesota. In reporting that the video was “probably part of a coordinated disinformation effort,” the Times cited an analysis by researchers at Stanford University and the University of Washington.

But the information the judge is seeking to keep secret has no relation to that lawsuit, the Times says, and did not come to the newspaper through the legal process of discovery. Nevertheless, it says, Project Veritas is arguing that the memos contain confidential information that is relevant to the group’s litigation strategy.

Specifically, the Times published an article last month in which it quoted from memos prepared by a lawyer for Project Veritas, suggesting strategies that would allow the group to engage in deceptive reporting practices without breaking federal law. That story was part of the Times’ reporting on the theft of a diary belonging to President Biden’s daughter, Ashley, for which the Justice Department is investigating Project Veritas. But the memos in question were written several years before the organization sued the Times.

Whether the judge truly understood any of this, or its First Amendment implication is an open question. While trial court judges are elected by voters in New York, their balloting is typically controlled by political bosses who often cross-endorse candidates to guarantee who will win. And even when that’s not the case, as The News has reported, the political donations of potential nominees can matter more to their chances than their qualifications.

Maybe that’s not the case with Westchester’s Justice Wood. Maybe he just made a mistake or has an ax to grind. Regardless, he has issued a dangerous ruling that undermines the First Amendment.

That’s not just a threat to news organizations, but to all Americans who have a constitutional right to the information provided by a free press. That’s as true for users of the New York Times as it is for those of The Buffalo News, the Wall Street Journal or Fox News. Higher courts need to set this judge straight – promptly.

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