NY appeals court stays prior restraint against The New York Times
A New York State appeals court stayed the prior restraint against The New York Times in a decision made public on Feb. 10, 2022.
The prior restraint was issued on Nov. 18, 2021, as part of a pending libel suit Project Veritas filed against the Times in 2020, the outlet reported at the time. The restraint remained in effect for nearly three months.
The Appellate Division of the State Supreme Court ruled that the Times can move forward with publishing documents pertaining to conservative group Project Veritas until a formal appeal of the restraint can be heard, the newspaper reported. The Times is also no longer obligated to turn over or destroy the copies of documents it is holding.
“We’re pleased with today’s decision to stop the enforcement of prior restraint while the case is being appealed and we look forward to explaining our position in the appeal,” a Times spokeswoman, Danielle Rhoades Ha, said in a statement published by the outlet. “The use of prior restraint to prohibit news gathering and block the publication of newsworthy journalism is unconstitutional. No libel plaintiffs should be permitted to use their litigation as a tool to silence press coverage about them.”
An attorney for Project Veritas, Elizabeth Locke, told the Times that they were pleased that the court had not granted the Times’s request to vacate the order. She added that they were confident the court would ultimately affirm Project Veritas’s claims.
A Westchester County Supreme Court judge issued an order on Nov. 18, 2021, barring The New York Times from soliciting, acquiring or further disseminating leaked internal documents from conservative group Project Veritas.
The prior restraint was issued as part of a pending libel suit Project Veritas filed against the Times in 2020, which accuses the newspaper of defaming the group in its reporting on a Project Veritas video that made unverified claims of voter fraud in Minnesota, the Times reported.
The judge’s order specifically references a Nov. 11, 2021 article about the Department of Justice’s investigation into the alleged theft of a diary belonging to President Joe Biden’s daughter, Ashley. The article also contained excerpts from memos prepared by a Project Veritas lawyer advising members of the group how to avoid breaking federal law while using questionable reporting methods.
In issuing the prior restraint, Justice Charles Wood ordered the Times to appear before the state’s Supreme Court on Nov. 23 to “show cause” — to explain or prove why the court shouldn’t grant Project Veritas’s motion for an order directing the newspaper to “remove all references to or descriptions of Plaintiff Project Veritas’s privileged attorney-client information” and “return and/or immediately delete all copies.” Until it does so, the order directs the newspaper to “cease further efforts to solicit or acquire” any materials prepared by the Project Veritas lawyer, effectively preventing the outlet from reporting on the group.
“This ruling is unconstitutional and sets a dangerous precedent,” Dean Baquet, the executive editor of the Times, wrote in a statement published by the outlet. “The Supreme Court made that clear in the Pentagon Papers case, a landmark ruling against prior restraint blocking the publication of newsworthy journalism. That principle clearly applies here. We are seeking an immediate review of this decision.”
In a statement published by The Washington Post, Elizabeth Locke, an attorney representing Project Veritas in its suit against the Times, denied that the order amounted to a prior restraint, citing the fact that some of the materials had already been published.
Press freedom advocacy groups quickly refuted the assertion that the order was not prior restraint. Advocacy Director Parker Higgins of Freedom of the Press Foundation, where the Tracker is housed, noted the order not only restricts the Times from publishing further and requests that what has been published be pulled from circulation, but also bars the newspaper from engaging in routine newsgathering activities.
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, also raised immediate concerns with the order.
“Prior restraints — which are orders not to publish — are among the most serious threats to press freedom,” Brown said in a statement. “The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.”