Strange Allies in the Fight to Protect Press Freedom
The mainstream media are holding their collective noses and supporting Project Veritas in its fight.
By Jane E. Kirtley, J.D.
Silha Professor of Media Ethics and Law
Director, Silha Center for the Study of Media Ethics and Law
University of Minnesota
An FBI raid on Project Veritas leader James O’Keefe’s home in early November 2021 has sparked an unusual demonstration of support from the very establishment media that O’Keefe has spent his career targeting and trashing.
The raid was conducted on the suspicion that O’Keefe and former Project Veritas staffers were implicated in the theft of President Joe Biden’s daughter Ashley’s diary before the 2020 election. The Department of Justice said the cellphones sought in the raid would reveal evidence of aiding and abetting the transport of stolen property worth $5,000 or more across state lines, and of failure to report the theft to law enforcement in violation of federal law.
Project Veritas says that the phones contain attorney-client privileged information and newsgathering materials protected by the First Amendment.
O’Keefe is the self-described “progressive radical” and founder and CEO of Project Veritas. His organization has a long history of conducting undercover sting operations, frequently targeting progressive nonprofits, politicians and the news media with the stated aim of disclosing bias, hypocrisy and illegal activity.
Many journalists repudiate Project Veritas and its methods, contending that the organization is ideologically driven and routinely violates established norms of media ethics.
As a professor of media ethics and law, I’ve been grappling with how to think about Project Veritas and its escapades for years. Like many media lawyers, I wish it would just go away.
Nevertheless, media organizations and their supporters, such as the American Civil Liberties Union, the Committee to Protect Journalists, and the Reporters Committee for Freedom of the Press, of which I served as executive director from 1985 to 1999, rallied to protest the searches and seizures as a possible violation of the First Amendment right of a news organization to gather information. They demanded answers about why Project Veritas was targeted in the investigation. And they made clear that they were concerned about more than just Project Veritas, whose methods they have often decried.
Project Veritas bills itself a nonprofit journalism enterprise, and its website touts its many efforts to “achieve a more ethical and transparent society.”
But its work doesn’t look much like traditional journalism. One of its more notorious undertakings involved making secret recordings at various offices of the Association of Community Organizations for Reform Now in 2009, purporting to show ACORN staffers advising O’Keefe and his associate how to evade taxes and engage in human trafficking.
Although a subsequent investigation by the California Attorney General concluded that the videos had been “severely edited,” their release prompted Congress to freeze federal funding to ACORN. ACORN was eventually exonerated by the Government Accountability Office, but Project Veritas continues to brag about its takedown of the organization as one of its “successes.”
Project Veritas also revels in exposés of what it calls “political bias in the mainstream media,” including CNN, ABC, National Public Radio, and The Washington Post. Recently, it sued The New York Times in state court in Westchester County, New York, claiming that the newspaper defamed it by calling its videos alleging voter fraud in Minneapolis “misinformation.” It has now used that case as the means to obtain a court order to compel the Times to curtail its reporting about the investigation, which Project Veritas claims came from government leaks — an extraordinary request for prior restraint unprecedented since the Supreme Court’s Pentagon Papers case in 1971, and hardly consistent with support of the First Amendment.
Disclosing Illegally Obtained Information
The Supreme Court has said that the First Amendment provides some protection for newsgathering, although it does not permit the news media to violate laws that apply to everyone. Because the government does not issue licenses to journalists, anyone who gathers and disseminates information to the public can claim to be “the press.” That’s why the FBI raid concerns members of the news media. They fear they could be next.
For their part, the attorneys representing Project Veritas say that two anonymous individuals, who claimed they had legally acquired the diary after Ashley Biden “abandoned” it at a house in Florida, offered to sell it to Project Veritas for possible publication. After the lawyers for both parties negotiated an “arm’s length agreement,” Project Veritas took delivery of the diary.
Project Veritas claims that it couldn’t authenticate the diary to its satisfaction and after trying unsuccessfully to return it to Biden’s lawyer, sent it back to local law enforcement officials.
If this version of events is true, U.S. Supreme Court precedent established in a 2001 press-related case, Bartnicki v. Vopper, should apply. There, the high court ruled that a media organization can disclose important information illegally obtained by a third party, as long as the organization itself was not involved.
“A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” Justice John Paul Stevens wrote.
If Project Veritas was not involved in the theft of the diary, it could also be covered by the Privacy Protection Act of 1980, which bars both federal and state law enforcement from seizing journalists’ work product and documentary materials except in very limited circumstances.
In fact, the Justice Department has been prohibited from even subpoenaing journalists by Attorney General guidelines that date back to 1974 — although investigations into leaks of classified information led to notable exceptions to this rule during the Obama and Trump administrations.
Earlier this year, Biden said it was “simply, simply wrong” to compel journalists to reveal their sources, and Attorney General Merrick Garland promised in July to beef up the guidelines and make them law to ensure that future administrations would also be bound by them, though he has yet to do so.
Project Veritas says it is covered by the Privacy Protection Act, which protects those engaged in “public communication,” as well as the guidelines.
But in defending the FBI raid on O’Keefe’s home, the government contends that it has followed all applicable regulations and policies regarding what it calls “potential members of the news media” — suggesting that they think Project Veritas isn’t one.
Until the underlying affidavits supporting the warrants are unsealed, we won’t know whether the U.S. Attorney thinks that Project Veritas committed a crime, or that it isn’t a news organization. Either possibility has serious ramifications for all media.
If Project Veritas is found guilty of a crime, any journalist who transports leaked or “stolen” information across state lines could be charged with violation of the law. It’s unclear what that means today when so many documents are transmitted electronically.
Or, if the government narrowly defines “the press” based on its political outlook or ethics, then no news organization is safe from attacks by future administrations.
Either way, the mainstream media are holding their collective noses and supporting Project Veritas in its fight. It’s a matter of principle, but also of self-preservation.
Originally published by NiemanLab, 11.30.2021, under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 United States license.