NEFAC, Press Organizations Continue Fight Against New York Times Prior Restraint

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The New England First Amendment Coalition and a group of press organizations continued their fight against a prior restraint imposed on The New York Times by submitting a second amicus brief calling for an immediate end to the unconstitutional restriction on newsgathering.

“Prior restraints against lawful speech, like the one at issue in this case, have been roundly rejected by the U.S. Supreme Court,” according to a Jan. 12 brief drafted on behalf of the groups by the Reporters Committee for Freedom of the Press.

The brief was filed in Project Veritas v. New York Times Co., a case now being appealed before New York’s Appellate Division, Second Department. NEFAC also joined a similar amicus brief filed in a lower court last November.

The case arises from a Nov. 11 story in The New York Times that included excerpts of memoranda prepared by an attorney for Project Veritas, unrelated to a defamation lawsuit between the two organizations.

Less than a week after the Times published the story, Project Veritas asked the state court handling the defamation case to enter a prior restraint against the newspaper, arguing that the memoranda excerpted in the Times’s article were subject to the attorney-client privilege.

The court granted Project Veritas’s request, ordering the Times to “refrain from further disseminating or publishing any of Project Veritas’ ‘privileged materials’” in its possession, pending an upcoming court hearing. The order also barred the Times from “further efforts to solicit or acquire” Project Veritas’s “attorney-client privileged materials.”

In their most recent brief, amici explained that a “prior restraint barring a news organization from publishing newsworthy information poses a grave danger not just to the Times, but to all members of the press — and by extension the public — for at least three reasons.”

Those reasons are:

(1) The lower court’s purported ‘attorney-client privilege exception’ to the First Amendment prohibition on prior restraints would invite companies, organizations, and individuals to drag into court a news organization whose coverage they perceive as unfavorable and then hijack the discovery process to suppress that coverage. 

(2) The lower court’s decision improperly employs a “public concern” analysis that substitutes the court’s judgment for that of editors and limits the presumption against prior restraint only to materials deemed by the court to be of “public concern.” 

(3) The lower court presumes that attorney-client privileged material is categorically “not fodder for public consideration and consumption.” Such a categorical rule, if upheld, would change the face of journalism in this country by silencing important news investigations for no other reason than the fact that they rely on communications between attorneys and clients that a journalist acquires via routine newsgathering. 

“The media must be free to report on material obtained through independent newsgathering, outside the discovery process — regardless of whether that material is privileged,” NEFAC and fellow amici argued. “News organizations are frequently the target of lawsuits by powerful people and organizations trying to quash critical reporting about them.”

NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. The coalition regularly writes and joins amicus briefs in cases involving First Amendment freedoms and the public’s right to know about government. All coalition briefs, advocacy letters and statements can be found here.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Leadership Circle donors include Hearst Connecticut Media Group, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters include Boston University, WBUR-Boston, the Academy of New England Journalists, the Society of Professional Journalists Foundation, Genie Gannett and Linda Pizzuti Henry.