THE LATEST FROM OUR SUPREME LEADER!

The New York Times is at it again: overstating the reach of the First Amendment – maybe.

Here are the facts, to the extent they have been published.

The Times apparently is in possession of a document prepared by lawyers for "Project Veritas" (a right-wing group that uses deception and false identities to target liberal groups.) The document apparently contains legal advice on what the client can do to avoid breaking the law. 

Can the Times publish the contents of such communication? Assuming Project Veritas sought legal advice, and the letter in question gives responsive legal advice, then, barring some non-relevant exceptions, it is "privileged." That means a court or a judge could not compel either the lawyer or the client to disclose its contents, and if the lawyer did so without the permission of his client he could be subject to disciplinary action up to and including disbarment. Moreover, information that results from the violations of the privilege would not be admissible in a court of law. (There is actually some question as to whether or not the privilege applies to Congressional testimony, but that's a subject beyond the reach of this note. Stay tuned.)

The attorney-client privilege pre-dates our Constitution. It was an important part of the English common law system because it recognized that for justice to be done, lawyers were obliged capably to represent their clients and could not do so without their clients’ fullest cooperation with respect to revealing facts – even bad ones.

The question in this case is muddled by the fact that Veritas is suing the Times for libel, though it is not clear to what extent the legal opinion in question bears on that case.

Now let's get down to the Times treatment of the matter.  The legal issue is being argued out in the New York courts (a lower court barred the Times’ use of the privileged document and went so far as to demand destruction of any copies of it in its possession. That order has been stayed, and the matter is now before an appellate tribunal.) While this has been going on, the Times has published an editorial pushing its position.

In its "public brief,' the Times relied on the Pentagon Papers case for the proposition that the First Amendment denied to the courts any right of prior restraint on publication. The Times editorial began:

"Half a century ago, the Supreme Court settled the matter when a court can stop a newspaper from publishing. In 1971, the Nixon administration attempted to block The Times and The Washington Post from publishing classified Defense Department documents detailing the history of the Vietnam War – the so-called Pentagon Papers. ... The Supreme Court sided with the newspapers. 'Without an informed and free press, there cannot be in an enlightened people,' Justice Potter Stewart wrote in a concurring opinion."

From that last snippet of a concurring opinion in a divided court, The Times argues, 

“That sentiment reflects one of the enduring principles of our legal system: the government may not tell the press what it can and cannot publish." 

In fact, the Times resorts to a frequently misstated holding in the Pentagon Papers case. I suggest the case stands for the opposite conclusion: in an appropriate case the court may indeed indulge in a prior restraint. The court did not specifically define what kinds of cases permit prior restraint but merely said that the proponent of such a restraint bears a “heavy burden.” While doing so the court made clear that if the Justice Department had met that burden, publication could have been restrained, and it cited examples from a prior decision of what kinds of statements would meet the burden in national security cases. But the court gave us no hint as to what kinds of facts would meet the “heavy burden” test in a non-national security context. 

We do not know how the Times came into possession of this privileged document. Given Veritas' demand for the destruction of the document, we can assume that there were only two remaining methods for the Times' acquisition: a dishonest employee of either the client or the lawyer, or a digital or physical thief. In either case, the Times' possession of the document would be severely tainted. Of course, if the Times participated in the leak or theft, that would doubtless change the equation substantially to its disadvantage.

But let's assume the Times came upon the document innocently – it arrived by mail with no identified sender. Does that mean the paper is permitted to violate the rights of Veritas? Can the Times publish a lawyer's privileged advice to a matrimonial client? Or to a client charged with securities fraud, even though a jury could not learn it in the courtroom?

And what of the other privileges, i.e., the privileged communication between a physician and patient, or a priest and penitent? Can the Times profit from revealing the contents of such a communication knowing that its source has obtained the information by violation of law or at least by violation of significant ethical principles? Can the Times publish the stolen details of a celebrity's urinary tract infection? Or details of  confession to his priest regarding the penitant's sexual preferences? Do the Time's so-called journalistic ethics not bar its use of illegally obtained material even if it did not promote the illegal acquisition by conspiring with the lawbreaker or the ethical violator in advance of the violation? 

The deeper one probes, the murkier the inquiry becomes. What if the Times had nothing to do with the acquisition of the stolen document, but paid the thief afterward, either as a result of a post-theft negotiation or as the result of gratitude? And what if the payment was a non-monetary thing of value to the thief? What if what the thief wanted was not cash, but prestige, or political power, or the joy of destroying an enemy? Is there no point at which the Times concludes that it is ‘wrong" if not “journalistically unethical", or illegal to publish a communication that the law recognizes as the privileged private property of a citizen?

Is the Times really the sole arbiter of the question of whether its adversary has tipped the scales at the weight of the “heavy burden” necessary to win a prior restraint?

If you're looking for the New York Times discussion of these questions, don't bother. Earlier in its editorial, the paper made the brash conclusion:

"The government may not tell the press what it can and cannot publish." 

In the concluding paragraph of its editorial, the editors expand the edict: 

 “No court should be able to tell the New York Times … how to conduct its reporting.”

Wow. So much for the rule of law.

A bientot.

………………………….

There is no fixed schedule for these posts. If you would like to receive notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.