Are the Courts Getting Ready to Crack Down on Reporters? A ruling blocking The New York Times from covering a far-right activist group has ominous implications for the first amendment.

AuthorEpps, Garrett
PositionProject Veritas

In 1994, the CBS program 48 Hours prepared to air explosive video about unsanitary conditions at a South Dakota meat-packing plant, Federal Beef Processors. A Federal Beef employee had agreed to wear a hidden camera to capture footage of operations at the plant. But the company got a state court injunction forbidding CBS to broadcast the report. Airing the story might result in "national chains refusing to purchase beef processed" by the company, the state court judge reasoned--and CBS had obtained the footage by "calculated misdeeds." The South Dakota Supreme Court refused an emergency request to lift the injunction.

One day later, U.S. Supreme Court Justice Harry Blackmun, without bothering to refer the matter to the full Supreme Court, dissolved the lower court's order. Federal Beef was free to sue CBS after the fact for damages, if it could prove any, he said, "rather than [proceed] through suppression of protected speech and news reporting."

At the time, Blackmun's order, and the haste with which it was granted, didn't raise many eyebrows. Very few principles are as firmly entrenched in First Amendment law as the doctrine of "prior restraint." That term, as the great First Amendment scholar Melville Nimmer explained, describes "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." In other words, if the government makes you submit your expression in advance for approval, that's prior restraint. And if a court orders you not to say or print anything on a subject, that, too, is prior restraint--which is all but completely forbidden. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity," the Supreme Court wrote in 1963.

Nonetheless, every now and then, local judges begin to wonder, like the attorney played by Joe Pesci in My Cousin Vinny, whether the Court is really ... serious about that. That brings us to New York Supreme Court Justice Charles Wood--in New York, every friendly local judge is a "Supreme Court Justice"--who last week issued an extraordinary order in a defamation case brought against The New York Times by Project Veritas, a far-right activist group that produces deceptively edited videos, often filmed in secret, to spur disinformation and conspiracy theories.

On November 2, Veritas had sued the Times for defamation. Its complaint was based on a September 29 investigative story by the reporter Maggie Astor and a September 30 follow-up by the media reporter Tiffany Hsu.

The stories referred to a...

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