The New York State judge also ordered The Times to turn over physical copies and destroy any electronic versions of documents a lawyer prepared for the conservative group.
A New York trial court judge has upheld his order preventing The New York Times from publishing documents prepared by a lawyer for the conservative group Project Veritas, in a move that alarmed First Amendment advocates concerned about judicial intrusion into journalistic practices.
In a ruling made public on Friday, the judge, Justice Charles D. Wood of State Supreme Court in Westchester County, went further: He ordered The Times to immediately turn over any physical copies of the Project Veritas documents in question, and to destroy any electronic copies in the newspaper’s possession.
The Times said it would seek a stay of the ruling and was planning to appeal it.
“This ruling should raise alarms not just for advocates of press freedoms but for anyone concerned about the dangers of government overreach into what the public can and cannot know,” the publisher of The Times, A.G. Sulzberger, said in a statement on Friday. “In defiance of law settled in the Pentagon Papers case, this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.”
Mr. Sulzberger said Justice Wood’s order that the company return the documents had “no apparent precedent” and “could present obvious risks to exposing sources.”
A lawyer for Project Veritas, Elizabeth Locke, said in a statement on Friday: “Today’s ruling affirms that The New York Times’s behavior was irregular and outside the boundaries of law. The court’s thoughtful and well-researched opinion is a victory for the First Amendment for all journalists and affirms the sanctity of the attorney-client relationship.” Ms. Locke accused The Times of being “a vehicle for the prosecution of a partisan political agenda.”
The judge’s order came about as part of a libel lawsuit filed in 2020 by Project Veritas, which is led by the provocateur James O’Keefe, that accused The Times of defamation.
The Justice Department is investigating Project Veritas for its possible role in the theft of a diary that belonged to Ashley Biden, President Biden’s daughter. The Times, in reporting on the investigation, published an article in November that quoted memos prepared by a lawyer for Project Veritas, which expounded on strategies that would allow the group to engage in deceptive reporting practices without breaking federal law.
Those memos predate, by several years, the libel case against The Times. But Project Veritas accused the newspaper of intruding on its right to attorney-client privilege. The group argued that the memos prepared by its lawyer were related to legal issues in its libel lawsuit against The Times and that the publication of the memos amounted to an attempt to embarrass a litigation opponent.
The order, issued by Justice Wood last month, had temporarily prevented the paper from further disseminating or seeking those memos and other privileged materials.
The leader of Project Veritas, Mr. O’Keefe, often uses surreptitious cameras and faked identities in videos that are meant to embarrass news outlets, Democratic officials, labor groups and liberals. In a statement on Friday about the judge’s ruling, Mr. O’Keefe wrote: “The Times is so blinded by its hatred of Project Veritas that everything it does results in a self-inflicted wound.”
In his new ruling, Justice Wood rejected the argument by The Times that the memos prepared by Project Veritas’s lawyer — which advised the conservative group on how to legally carry out deceptive reporting methods — were a matter of public concern.
“Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” the judge wrote. He added: “Our smartphones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some things are not fodder for public consideration and consumption.”
Justice Wood contended that his ruling did not amount to a restriction on the newspaper’s journalism.
“The Times is perfectly free to investigate, uncover, research, interview, photograph, record, report, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas’s attorney-client privileged memoranda,” the judge wrote.
Theodore J. Boutrous Jr., a lawyer who represents media outlets including CNN, said in an interview on Friday that the judge’s ruling was “way off base and dangerous.”
“It’s an egregious, unprecedented intrusion on news gathering and the news gathering process,” Mr. Boutrous said. “The special danger is it allows a party suing a news organization for defamation to then get a gag order against the news organization banning any additional reporting. It’s the ultimate chilling effect.”
The Times and Project Veritas submitted written arguments to Justice Wood this month after a state appellate court denied an initial attempt by The Times to have the order thrown out.
In a brief filed on Dec. 1, lawyers for Project Veritas argued that The Times was “dressing up its arguments in First Amendment” law. “A decision denying this protective order — particularly in today’s internet and social media age — will permit any would-be citizen journalist, blogger or Instagram influencer to claim the right to publish their litigation adversary’s attorney-client privileged communication with impunity,” the group wrote.
In response, lawyers for The Times wrote on Dec. 3 that the memos had been obtained through traditional reporting, not as part of formal litigation, and therefore could not be prevented from being published. The paper argued that any attempt to prevent it from publishing its journalism was “an unconstitutional prior restraint” that is prohibited by decades of established First Amendment law.
“This is not, as Project Veritas suggests, a run-of-the-mill discovery dispute,” The Times wrote in a brief. “The information published by The Times was obtained outside discovery by reporters doing their jobs. Project Veritas simply seeks to use this litigation to suppress unfavorable news coverage of its activities. That it cannot do.”