James O’Keefe, the New York Times and the Chill on Press Freedom

James O'Keefe at the Palm Beach County Convention Center in West Palm Beach, Florida, 2018.(Gage Skidmore via Flickr)
"Freedom of the press" either applies across the board, from James O'Keefe to the New York Times, to the lowliest of websites, or those words are meaningless.

If you want to read a frightening document — one that should scare the snot out of everyone doing journalism, from indie news sites to the big shot writers for premium pubs  — check out a Nov. 10 letter/motion from the Calli Law Firm in Miami, Florida to U.S. District Court Judge Annalise Torres in the Southern District of New York.

The Calli Law Firm represents Project Veritas founder James O’Keefe, a Torquemada-like tormentor of progressive causes and media, whose home was subject to a pre-dawn raid by the FBI on Nov. 6, with agents bearing a battering ram and klieg lights on the hunt for evidence concerning an allegedly-stolen diary belonging to President Biden’s 40-year-old daughter, Ashley.

When it comes to freedom of the press, what’s the difference between a New York Times reporter and James O’Keefe? Um, nothing. (samchills via Flickr)

According to the motion, which is posted to Project Veritas’ website, at 6 a.m. about ten FBI agents banged on O’Keefe’s door. When he opened it, they hauled him into the hallway of his apartment building in Mamaroneck, NY, wearing only his underwear. There, he cooled his heels, handcuffed, as the FBI searched his pad and seized two cell phones pursuant to a warrant.

A federal grand jury had already hit O’Keefe’s lawyer with a subpoena, but shock and awe is de rigueur when the feds are involved. The day before, agents similarly had raided the homes of “two former Project Veritas journalists, seizing their cell phones and electronic devices.”

O’Keefe’s lawyers explain that his work cell phone contained privileged attorney-client communications, communications with confidential sources and materials protected by the First Amendment that “are wholly unrelated to the government’s diary investigation.” They ask the judge for the appointment of a “special master” to review the data being extracted from O’Keefe’s phone so that the feds stick to what’s sought by the warrant: info regarding Ashley’s diary.

Attached to the motion are exhibits, one of which includes emails between attorney Paul Calli and a lawyer at the U.S. Attorney’s Office, asking that the government “sequester and not access Mr. O’Keefe’s cell phone.” Calli explains that he will be filing a motion for a special master and requests that the feds hold off for a day.

The response from the government is chilling.

“In light of your request for us to ‘sequester’ your client’s devices, please be advised that we anticipate the forensic extraction of data from those devices to begin as early as tomorrow morning.”

Judge Torres subsequently ordered the government to confirm that it had “paused its extraction and review of the contents of Petitioner O’Keefe’s phones” while she mulls over the special master idea.

It’s every journalist’s nightmare to have their phone confiscated by law enforcement as some prosecutor pores over every contact and email trying to come up with something to charge you with. It’s also a violation of this thing called “freedom of the press,” which the courts have declared — at least in theory — that we all should enjoy, not just mainstream news outlets.

But in this era of souped-up partisanship and bellicose tribalism, more and more people want to deny Frist Amendment freedoms to those they do not like or agree with. And many on the so-called “left” cheered O’Keefe’s comeuppance.

Dean Baquet, executive editor of The New York Times: Will the feds ever give him the O’Keefe treatment? (Joi Ito via Flickr)

O’Keefe’s methods are “unsavory,” many argue, and he is not a “real” journalist, so Constitutional protections should not apply to him. The same arguments are often used to undercut any defense of Julian Assange and WikiLeaks.

You wanna talk about “unsavory” journalism? There’s nothing more unsavory than the way The New York Times played cheerleader for the U.S. invasion of Iraq, upholding the lies of our elected officials. Or consider the fact that the Times‘ onetime star columnist, Nicholas Kristof, actually purchased two women in Cambodia, supposedly to save them from sexual slavery, though one of the women returned to a brothel afterward.

Such epic sleaziness on the part of what’s purported to be the gold standard for journalism suggests that what’s “unsavory” is in the eye of the beholder.

The Grey Lady Clutches Her Pearls

O’Keefe and his lawyers claim that Project Veritas was approached by two “tipsters” who said they had obtained Ashley Biden’s diary, which had been, according to the Calli Law Firm, “abandoned at a house where she had been staying in Delray Beach.” Money changed hands, and Project Veritas tried to authenticate what they had.

O’Keefe said in a Nov. 5 video that Project Veritas “took steps to verify the authenticity of the diary” but ultimately did not publish it because they “could not determine if the diary was real.”

The Calli letter says that they turned the diary over to local law enforcement a year ago.

All media outlets of any weight seek the advice of counsel when it comes to their practices. But according to the Times, Project Veritas is different because it employs operatives who “mask their real identities or create fake ones to infiltrate target organizations.”

“We don’t know if it was [stolen],” O’Keefe said of the diary. “But it begs the question in what world is the alleged theft of a diary investigated by the president’s FBI and his Department of Justice.”

Well, according to the Times, the DOJ’s investigation of the theft began during the waning days of the Trump administration after a complaint from the Biden camp. Nevertheless, raiding opposition news-gatherers on the hunt for a President’s adult daughter’s missing diary sounds like something that would happen in Argentina under the junta.

Some of the diary was eventually published by a little-known outlet that said it got the pages from a “whistleblower” in O’Keefe’s organization. The excerpt reads like someone doing an emotional inventory for psychological counseling. It’s vague and ultimately boring, which could be another reason why the Project Veritas folks 86’d the idea of publishing it.

It’s a well-established Supreme Court precedent that if a news organization publishes stolen material, it’s still protected by the First Amendment. That was the basis of the Pentagon Papers case, when whistleblower Daniel Ellsberg turned over a secret government history of the Vietnam War to the Times.

Subsequent court rulings have expanded that principle, and courts have also ruled that it doesn’t matter if a news organization pays for material it knows was stolen. As long as the outlet doesn’t participate in the stealing, it’s in the clear.

If the DOJ can prove that Project Veritas was involved in a theft, the government may have something. But a recent, controversial Times article ironically argues against that possibility.

The title of the Nov. 11 Times piece practically drips with contempt, “Project Veritas and the Line Between Journalism and Political Spying.” Check the deck: “Documents show how the conservative group worked with lawyers to gauge how far its deceptive reporting practices could go before running afoul of federal laws.”

Reading that deck, you have to wonder, why is that even a story? All media outlets of any weight seek the advice of counsel when it comes to their practices. But according to the Times, Project Veritas is different because it employs operatives who “mask their real identities or create fake ones to infiltrate target organizations.”

The piece quotes media lawyers advising Project Veritas what it should and should not do to stay within the parameters of the law. This is wrong, how? Though the slant of the article is anti-Project Veritas, the material itself argues that the organization has been taking steps to ensure its tactics are lawful. This leads one to believe that Project Veritas did not directly involve itself in a theft, which certainly its attorneys would counsel against.

Knickers in a Bunch

Project Veritas was already involved in litigation in New York state court with the Times, suing the paper for defamation over a story the Times did in 2020 calling into question a Veritas video about supposed voter fraud in the presidential election.

Ticked by the Nov. 11 piece revealing its internal attorney-client discussions over tactics, Project Veritas filed a motion complaining to the judge in the defamation case that the Times had exposed privileged communications. The organization alleged that the documents came from O’Keefe’s seized cell phones and asked the judge to order the government to give up the name of whoever leaked the docs to the press. (FWIW, the Times says it acquired the confidential memoranda before the raid on O’Keefe’s pad.)

A Nov. 18 Times report explains what happened next:

On Thursday, the trial court judge, Charles D. Wood of State Supreme Court in Westchester County, ordered that The Times “immediately sequester, protect and refrain” from disseminating any of the materials prepared by the Project Veritas lawyer. Furthermore, Justice Wood instructed The Times to “cease further efforts to solicit or acquire” those materials, effectively preventing the newspaper from reporting on the matter.

The order was to remain in place until a hearing next week. The Times planned to immediately oppose it in an appellate court.

“This ruling is unconstitutional and sets a dangerous precedent,” Dean Baquet, the executive editor of The Times, wrote in a statement on Thursday.

“When a court silences journalism, it fails its citizens and undermines their right to know,” Mr. Baquet wrote. “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.”

This development caused some media mavens to accuse Project Veritas of hypocrisy. In a recent opinion piece, Washington Post media critic Erik Wemple writes, “Project Veritas’ leaders fancy themselves First Amendment purists, yet the actions they’re now asking courts to authorize would leave that doctrine in tatters.”

Similarly, The New Republic’s Matt Ford notes that the judge’s order amounted to “prior restraint, the legal term generally used for when courts block a newspaper or other journalistic organization from publishing something.”

Like Wemple, Ford thinks Project Veritas is full of the brown stuff.

“How could Project Veritas claim the mantle of press freedom in one case while undermining it elsewhere?” Ford asks.

Per usual when it comes to First Amendment discussions, the libertarians at Reason magazine have the right take on the controversy. In an analysis published Nov. 19, Reason senior editor Jacob Sullum accuses the Times of wrongly implying that “press freedom is limited to ‘real’ journalists,” whatever that irksome phrase means.

Sullum points out that freedom of the press, one of the five freedoms enshrined in the First Amendment, is much broader than many professional journalists would have us believe. He cites the work of First Amendment scholar Eugene Volokh, demonstrating that the “historical record” shows that the phrase “refers to a technology of mass communication, not to a particular profession.”

Indeed, Sullum argues,  freedom of the press “protects anyone who uses the printed word—and, by extension, media such as TV, radio, and the internet—to communicate with the public.”

Basically, anyone can be a journalist by doing journalism.

Sullum adds:

“The Times is nevertheless obsessed with policing the line between real journalism (what it does) and fake journalism (what Project Veritas does). ‘Project Veritas has long occupied a gray area between investigative journalism and political spying,’ Times reporters Adam Goldman and  say in the story that prompted Wood’s order. The organization’s ‘sting operations,’ they explain, ‘typically diverge from standard journalistic practice by employing people who mask their real identities or create fake ones to infiltrate target organizations.'”

The Times‘ characterization of Project Veritas is “constitutionally irrelevant,” Sullum observes.

Even the ACLU, which has been lax in defending First Amendment rights in recent years, issued a statement decrying the FBI’s raid on Project Veritas, essentially saying that whatever you think of Project Veritas,  “the precedent set in this case could have serious consequences for press freedom.”

The one thing that might change all that is if Project Veritas was involved in the theft of Ashley Biden’s diary. That may be what the federal government wants the public to believe. But if the feds have taught us anything over time, it is that they cannot be trusted to tell the truth.

Until the FBI or the DOJ reveals evidence to the contrary, the default position should be outrage over its thuggish treatment of a member of the media.

As for a judge issuing a prior restraint order on The New York Times’ reporting? Sure, that’s wrong and seems unlikely to stand.

But so far, the feds have yet to cuff Dean Baquet and leave him standing in his tighty-whities as they rifle through his digs. And therein lies the difference.

ICYMI, please see:
Lacey/Larkin Defense Asks Judge to Release Portion of Illegally-Seized Assets
and
McCains Cast ‘Long Shadow’ over Lacey/Larkin Case

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About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

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