Confused Judge Grants Project Veritas' Prior Restraint Against The NY Times

from the that's-bad dept

This is so bizarre. Last month we wrote about how the incredibly hypocritical oafs at Project Veritas were, on the one hand, screaming about their own press freedoms (for potentially legitimate reasons) while simultaneously trying to get a prior restraint order against the NY Times using the famed press silencers at the censorial thuggish law firm Clare Locke. Somewhat incredibly, on Christmas Eve a New York Supreme Court judge granted the request.

At issue is that the NY Times apparently got access to some memos that Project Veritas’s lawyer had sent to Project Veritas, apparently about how Project Veritas’ brand of secret filming and selectively edited “journalism” might violate various laws. PV ran to court to stop the Times from publishing anything from the documents, and got a ridiculously broad order that could be read to say that the NY Times couldn’t even continue reporting on PV. Incredibly, Project Veritas, whose entire genre of “reporting” revolves around obtaining information through deceit, claimed that the NY Times could be stopped under a law that allows for the “suppression of information improperly obtained.” Can’t see how that might come back to bite PV, now.

The NY Times rightly pointed out that this order was clearly prior restraint and unconstitutional under the 1st Amendment. The complicating factor here is that the censorial hypocrites at PV are suing the NY Times for alleged defamation, and claim that the information obtained by the NY Times reporters “relates directly” to the case at hand. The Times, on the other hand, pointed out that the information in the memos they obtained “have nothing to do with the subject matter in the underlying defamation action” and actually predate the PV video at issue in that case. More importantly, the NY Times noted (correctly!) that a news organization cannot be prevented from reporting on newsworthy info, even if that information is attorney-client privileged info, so long as they came by it via the news gathering process (i.e., not via discovery and the legal process in the lawsuit).

And, here, it’s impossible that the documents were obtained via discovery because discovery hasn’t even happened yet in the lawsuit.

But the judge, Charles Wood, says that Project Veritas “has met is burden of showing the subject memoranda were obtained by irregular means, if not both irregular and improper.” The judge goes on a long digression about the importance of attorney-client privilege, but seems to totally miss the fact that it only matters with regards to being able to deny certain discovery requests, and that a third party news organization is simply not bound by the attorney-client privilege of a lawyer and a client if the material is obtained through their reporting.

The court then addresses the 1st Amendment issues here… by basically brushing them off and saying it’s no big deal. It goes through a long discussion on prior restraint and how the Supreme Court has rejected attempts at prior restraint in the past, but then seems to think that attorney-client privilege trumps that. It’s bizarre. Even more bizarre is a weird aside about how our smart phones “beep and buzz” with information the judge believes is unimportant.

In light of these principles of law, the court rejects the Times’ position that Project Veritas’ attorney-client communications are a matter of public concern. Undoubtedly, every media outlet believes that anything it publishes is a matter of public concern. The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half. Our smart phones 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. These memoranda, and hundreds of thousands of similar attorney-client privileged documents that are in homes, offices, and businesses in every village, town, and city in this nation are only between an attorney and a client, and it does not matter one bit who the attorney and the client are. While the content of the advice is irrelevant to this court’s analysis, in this case, the subject memoranda here contain typical, garden variety, basic attorney-client advice that undoubtedly is given at nearly every major media outlet in America, including between the Times and its own counsel.

A client seeking advice from its counsel simply cannot be a subject of general interest and of value and concern to the public. It is not the public’s business to be privy to the legal advice that this plaintiff or any other client receives from its counsel.

So, a few things about this. First of all, simply having a judge decide on his own whether or not a document is in the public interest raises its own 1st Amendment concerns, because it’s substituting the judge’s opinion for the news organization’s editorial decision-making process — and seems wide open to vast abuses to suppress speech. Judge Wood’s own analysis here shows what a fraught 1st Amendment path he is taking.

Furthermore, if we compare this ruling to the Pentagon Papers case, it seems to suggest that “garden variety, basic attorney-client advice” somehow can be subjected to prior restraint, whereas things that might “threaten national security” cannot be. And that… makes no sense at all. The 1st Amendment has a very narrow set of limited exceptions and “attorney-client privileged material” is not one of them.

Finally, while “typical, garden variety, basic attorney-client advice” may not be newsworthy in most cases, there absolutely are cases when they can be newsworthy and in the public interest and that includes the scenario in this very case — where the advice raises significant legal concerns about the methods PV used to manufacture a story that received national attention and potentially had wider ramifications. But, again, the newsworthiness of that should be up to the news organization and not the state, or else you don’t really have freedom of speech.

Judge Wood also seems to think (extremely incorrectly) that the 1st Amendment allows for a balancing test between the Constitution and NY state law. This is just wrong.

Here, the court’s protective order does not act as impermissible prior restraint on the Times. As important as the First Amendment’s protections against prior restraint is, on the present facts, the erosion of attorney-client privilege is a far more imminent concern.

Hilariously, given that this effort is to protect Project Veritas, the judge cites another case that suggests “hit and run journalism” gets less 1st Amendment protections:

‘Hit and run’ journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid dirver’s license.

This is a very weird quote from a strange 1979 case but if you think more carefully about it, the statement makes no sense at all.

Either way, the NY Times has already said that it will be appealing this decision (confusingly for those not deeply enmeshed in these issues, NY’s “Supreme Court” is effectively the district court level in the state, so its rulings can be appealed):

I would be amazed if, on appeal, this blatant prior restraint is not tossed out as a violation of the 1st Amendment.

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Companies: ny times, project veritas

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That Anonymous Coward (profile) says:

That suggested law that removed them from the bench when they blow a 1st Amendment ruling is looking better and better isn’t it?

"the erosion of attorney-client privilege is a far more imminent concern."

Either the attorney or the client let the cat out of the fucking bag, the NYT’s did not breaking into an office & lift the documents.
If anyone should be punished it should be the lawyers or the client for not keeping their super secret documents secret.

Thad (profile) says:

Re: Re:

That suggested law that removed them from the bench when they blow a 1st Amendment ruling is looking better and better isn’t it?

While there are certainly a lot of judges who I wish were not on the bench, if you can’t think of any downsides to granting the current Supreme Court majority the power to remove lower-court judges who disagree with them then I don’t think you’ve thought your suggestion through to its logical conclusion.

sumgai (profile) says:

Re: Re: Re: Re:

Besides which, the Supremes can’t remove a sitting Federal judge anyway. That duty lies within the provenance of the House of Representatives to impeach, and the Senate to try the person.

That’s not to say that they couldn’t hound the "cracked" person off of the bench with reversal after reversal, and possibly a "hint" that makes it’s way over to Congress….

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nasch (profile) says:

Re: Re:

If anyone should be punished it should be the lawyers or the client for not keeping their super secret documents secret.

The privilege belongs to the client, not the attorney. If the client wants to talk about privileged information they are free to do so – only the attorney is bound.

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Koby (profile) says:

Other Side

You forgot to mention that the FBI raided O’Keefe’s residence, and then deliberately leaked the contents of his communications illegally to the NYT. The DOJ has now been ordered to stop extracting data from the confiscated devices (by a different judge!). Oh, and the NYT is currently the recipient of a defamation lawsuit from O’Keefe.

Ordinarily, techdirt would be highly critical of such a corrupt operation by the FBI, and illegally obtaining attorney-client privileged information. But, because a political opponent is the target, it’s okay. Fortunately, it appears that this judge understands that collusion is occurring behind the scenes, especially since the NYT is refusing to disclose how they obtained it.

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Anonymous Coward says:

Re: Other Side

You’d have to prove that the NYT did something illegal for this to be relevant. You say collusion, but you can only point to actions by the FBI. The NYT is a news agency and the material is newsworthy. If the FBI is leaking information, that’s on the FBI, but the NYT is legally able to publish the information, which has nothing to do with the defamation suit and if it were defamatory to publish, O’Keefe could file a different lawsuit on that topic. But prior restraint is blatantly unconstitutional.

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z! (profile) says:

Re: Re: Re: Other Side

Not if they colluded.
Koby, you seem hung up on the word "collusion" when the word "conspire" would do admirably; but then there needs to be a reason to conspire and at least two parties willing to do so.

They picked the fruit of the poisoned tree.
That legal metaphor applies to admission of evidence in court and relates to the 4th, not to news materials and the 1st.

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Scary Devil Monastery (profile) says:

Re: Re: Re: Other Side

"Not if they colluded. They picked the fruit of the poisoned tree."

Koby, Koby, Koby…????

I mean, we’ve known for a while now that you have the legal acumen of a concussed hamster, but now you’ve gone as far as conflating the amendments.

The problem with this ruling is that it grants to a private entity freedom to sanction the free press even when the material to be published isn’t defamatory.

That’s like redefining, in a court of law, perjury to mean "Anything the witness is going to say henceforth". And with much the same sort of consequences.

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Mike Masnick (profile) says:

Re: Other Side

You forgot to mention that the FBI raided O’Keefe’s residence,

No, we talked about that, in explaining why we defended O’Keefe’s free press rights.

then deliberately leaked the contents of his communications illegally to the NYT.

There is no evidence, whatsoever, that supports this contention, and if there was, PV would need to show it in court.

Oh, and the NYT is currently the recipient of a defamation lawsuit from O’Keefe.

This is part of that case, which is actually mentioned in my article you clearly did not read.

Ordinarily, techdirt would be highly critical of such a corrupt operation by the FBI

Again, we DID write about this.

Koby you’re getting sloppy.

But, because a political opponent is the target, it’s okay.

No, you lying jackass. We defended PV on that part.

Fortunately, it appears that this judge understands that collusion is occurring behind the scenes, especially since the NYT is refusing to disclose how they obtained it.

That’s not at all how this works.

For someone who insists that the 1st Amendment is so important, it’s you who seems incredibly flexible on it, Koby.

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Koby (profile) says:

Re: Re: Other Side

Brilliant thought experiment (not my idea) — if the FBI raided the home of A.G. Sulzberger to find the leaker, and then leaked unrelated information seized to Fox News, what then? You would be having a conniption, and rightfully so. Instead, you are advocating for an exception to illegally obtained, and illegally leaked, attorney client privileged information. PV gets the injunction, the NYT has been ordered to delete the information that was given to them. And if the Nyt wants to claim that they didn’t collude with the FBI, then they can attempt to do so at trial and get laughed out of court and straight into paying a massive judgement by the jury.

The 1st Amendment protects political speech, not deliberately leaked attorney-client privileged messages.

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Mike Masnick (profile) says:

Re: Re: Re: Other Side

Brilliant thought experiment (not my idea) — if the FBI raided the home of A.G. Sulzberger to find the leaker, and then leaked unrelated information seized to Fox News, what then?

We’d complain about the raid, as we did with PV:

https://www.techdirt.com/articles/20211116/18082747956/yes-even-if-you-think-project-veritas-are-bunch-malicious-grifters-fbi-raid-is-concerning.shtml

And we’d still support Fox News’ 1st Amendment rights to publish the material.

Because we’re consistent. Unlike you.

You would be having a conniption, and rightfully so.

About the raid, yes. Just as we did about the raid of PV.

Instead, you are advocating for an exception to illegally obtained, and illegally leaked, attorney client privileged information.

No, we are advocating against prior restraint, just as we have always done.

And if the Nyt wants to claim that they didn’t collude with the FBI, then they can attempt to do so at trial and get laughed out of court and straight into paying a massive judgement by the jury.

That’s now how the 1st amendment, prior restraint, or the judicial process works.

The 1st Amendment protects political speech, not deliberately leaked attorney-client privileged messages.

You’re simply wrong about that.

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Koby (profile) says:

Re: Re: Re:2 Other Side

No, we are advocating against prior restraint, just as we have always done.

Horrific. Techdirt has advocated in the past against law enforcement legal skulduggery. From judicially manufactured legal concepts such as qualified immunity, to catch-22 hiding of evidence behind supposed national intelligence secrecy. But now you’re trying to CREATE a legal loophole for law enforcement.

Just collude with a publisher, and escape all accountability?!?! No way. Nyt can escape from their predicament at any time by naming the source, but we all know it was the FBI.

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Anonymous Coward says:

Re: Re: Re:3 Other Side

Citations needed to show a conspiracy between NYT and FBI to obtain and publish the information. An FBI leak alone is insufficient to show that the NYT has done anything wrong.

Nyt can escape from their predicament at any time by naming the source

And break the cardinal rule of protecting your sources.

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Chozen says:

Re: Re: Re:4 Other Side

Very low standard of proof for protective orders in NY State. You only need show reasonable grounds which is an exceptionally low standard of proof.

NBC was present at the raid which means they were tipped off. They information was "leaked" shortly there after. It is no unreasonable to say the FBI are the ones who gave it to the NYT.

You do not have to connect the dots for a protective order. You do not have to prove it beyond a reasonable doubt or even a preponderance of the evidence. The argument the court need only be reasonable.

Don’t confuse proof and evidence.

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bhull242 (profile) says:

Re: Re: Re:5 Other Side

Very low standard of proof for protective orders in NY State.

Immaterial. This isn’t a protective order, so that makes zero difference.

NBC was present at the raid which means they were tipped off. They information was "leaked" shortly there after. It is no unreasonable to say the FBI are the ones who gave it to the NYT.

Irrelevant. That doesn’t mean that they participated in or instigated the raid or solicited the information, which means they had nothing to do with the information being gathered in the first place. Who gave it to them is irrelevant at this stage.

Chozen says:

Re: Re: Re:6 Other Side

Oh god! Did you even read your own links. From the judges decision which you linked to in the original article.

"Unlimited disclosure is not mandated, however, and a court may issue a PROTECTIVE ORDER, pursuant to CPLR 3103 denying, limiting conditioning or regulating the use of any disclosure device "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person of the courts. The supervision of disclosure and the setting of reasonable terms and conditions therefor rests with the sound discretion of the trial court, and absent an improvement exercise the discretion, its determination will not be disturbed" (Ligoure v City of New York, 128 AD3d 1027,1028 [2d Dept 2015])."

"Project Veritas claims that these improper irregular actions by the Times have substantianially prejudiced its rights, and thus the court should issue a PROTECTIVE ORDER mandating that the times cease such conduct immediately"

"Project Veritas argues that "a decision denying this PROTECTIVE ORDER-particularly in todays internet an social media age -will permit any would-be citizen journalist, blogger, or Instagram influence to claim right to publish their litigation adversary’s attorney-client privileged communication with impunity.""

"Further, the Times’ reliance on Seattle Times Co v Rinehart is misplaced here. In Seattle Times Co., the issue was not the violation of attorney-client privilege, but rather use and publication of financial records obtained during disclosure of the Aquarian Foundation and its "spiritual leader," Rhinehart. Initial, the trial court denied any PROTECTIVE ORDER"

"Here, the court’s PROTECTIVE ORDER does not act as an impermissible prior restraint on the Times."

Its now clear the despite I see the header of the ducmentcloud as "Contributed by Mike Mansick (Techdirt)" you didn’t read the decision. Its actually a good read I suggest you read it. Yet another own goal by Mike Mansick.

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Mike Masnick (profile) says:

Re: Re: Re:3 Other Side

Horrific

Being consistent and principled believers in the 1st Amendment is "horrific"? How so, Koby?

Techdirt has advocated in the past against law enforcement legal skulduggery.

Yes. And we continue to do so.

But now you’re trying to CREATE a legal loophole for law enforcement.

We are doing no such thing. Why are you so insistent on making shit up, Koby? We are not supporting anything involving law enforcement here and since no connection to law enforcement has been shown, let alone proven, your attempt to make shit up is well noted, but it makes you look foolish.

Just collude with a publisher, and escape all accountability?!?!

That would be unfortunate if that was what happened. Unfortunately for you, there remains no evidence of that happening at all. And if there were evidence for it we would continue to call out the problems on the law enforcement side.

None of that justifies prior restraint, however.

Nyt can escape from their predicament at any time by naming the source, but we all know it was the FBI.

So… Project Veritas can "escape from their predicament" regarding the FBI raid if they just name their source for the Ashley Biden diary? Interesting take, Koby! I didn’t think you were so anti-source protection. Unlike you, I have principles, and I support both the NYT’s and PV’s right to protect sources for journalistic activity.

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Chozen says:

Re: Re: Other Side

"There is no evidence, whatsoever, that supports this contention, and if there was, PV would need to show it in court."

Timelines are evidence, relationships are evidence.

You seem to confuse "evidence" with "proof" as most people on the left do when making legal arguments. The standard of proof here is not

In New York state as in many states states the standard of proof for a protective order is just reasonable grounds which is an extremely low standard of proof.

Fact FBI raided O’Keefe and other Veritas reports. Fact NBC was present at the raid. Fact NBC then acquired confidential documents and refuses to name the source.

Under reasonable grounds standard of proof this fact pattern is more than enough for a protective order.

Chozen says:

Re: Re: Re:2 Other Side

Oh look at the legal minds. An injunction is a type of Protective Order. They are interchangable

From the DOJ you genius

https://www.ncjrs.gov/ovc_archives/bulletins/legalseries/bulletin4/ncj189190.pdf

"Introduction
T o deter violent, abusive, and intimidating acts against victims, both civil and criminal courts have been granted the authority to restrain improper conduct. Referred to as “restraining orders,” “injunctions,” or “protective orders,” these orders restrict or prohibit one individual’s behavior to protect another individual"

The judge himself in the ruling Mike posted calls it a protective order. You scholars just didn’t read it.

Chozen says:

Re: Re: Re:4 Other Side

There is no change in standard of proof just what must be proved under the low standard of proof. Prior restraint only extends a third burden to the petitioner seeking the restraint that the material is not a matter of public concern.

In all the cases the Time’s cited where the courts struck down Protective Orders the plaintiffs were either government themselves or quasi government. This inherently makes them matters of public concern. Veritas is not government. They are private. And the issue of private privilaged communications being a matter of public concern has already been decided by the courts "the general public has no right of access to private communications between a defendant and his counsel" US v. Noriega 1990.

If you actually read the decision the biggest issue here is private v. public. Yes protective orders against the publishing of privilaged communications when the petitioner was a government entity have been shut down. But historically the courts have taken a far different stance when the petitioner is private.

1st Amendment? What about the 6th Amendment. The courts have long held that legal privilaged is implicit in the 6th Amendment. No one can have adequate legal council if the communication is not privilaged. To deny anyone their right to privilaged council is to deny them their 6th Amendment right to council.

Again as the courts have said

"the general public has no right of access to private communications between a defendant and his counsel"

The public has a far greater interest in securing the 6th Amendment than they would ever possibly have in a single case involving a private entities discussion with their lawyer.

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Toom1275 (profile) says:

Re: Other Side

Ordinarily, techdirt would be highly critical of such a corrupt operation by the FBI, and illegally obtaining attorney-client privileged information. But, because a political opponent is the target, it’s okay.

Translation: "I’m compelled to make up stupid whole-cloth lies like Comrade O’Keefe does because I agree politically with them." – Koby

Anonymous Coward says:

Well slippery slope is slippery...

Started with cops not needing to know the laws they enforce at all and now we arrived at judges that dont evwn understand the very first law that serves as the basis of our nation. For it to not understand that the constitution supercedes every other law in the books indicates how low the standard is for veing a judge in this country.

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That One Guy (profile) says:

'Pentagon papers'? Never heard of 'em

What could possibly go wrong with setting the precedent that entirely unrelated third-parties could be bound by legal restrictions they had absolutely no involvement with like attorney-client privilege?

You have to wonder if the hypocrites at PV realizes how badly they are shooting themselves in the back here. If they actually do ‘win’ this case then it seems they are opening themselves wide open for being sued into oblivion the next time their sources are anything but squeaky clean and entirely above board and given this is PV we’re talking about that’s not an ‘if’ scenario that’s a ‘when’.

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Mike Masnick (profile) says:

Re: AMAZING that you elide the FBI's corrupt raid on Project Ver

You mean the raid that we wrote a whole post calling out as dangerous and against 1st Amendment principles?

https://www.techdirt.com/articles/20211116/18082747956/yes-even-if-you-think-project-veritas-are-bunch-malicious-grifters-fbi-raid-is-concerning.shtml

Blue, you should maybe stop lying all the time?

Scary Devil Monastery (profile) says:

Re: Re: AMAZING that you elide Out of the Basement

He’s obviously butthurt over it. I assume that’s why he deigned to pitch in and try to defend his title of Dumbest Asshat Ever To Disgrace A Forum With His Presence.

Especially given that what he shat on the poor defenseless text box this time around was a claim that Techdirt supported a raid they’d previously spent an – easily found – article lambasting in the strongest possible terms.

But that’s just poor old Baghdad Bob for you. Over ten years wasted on trying to troll people and he still hasn’t gone beyond being a bloody toddler screaming embarrassingly obvious false assertions at the adults in the room.

bhull242 (profile) says:

Re: AMAZING that you elide the FBI's corrupt raid on Project Ver

AMAZING that you elide the FBI’s corrupt raid on Project Veritas

They literally wrote an entire article condemning that, and that article was linked in this one. You literally don’t know what you’re talking about.

then were "leaked".

Which in no way changes the legal analysis with regards to the preliminary injunction at issue here, at least with respect to NYT. Prior restraint is unconstitutional regardless of whether or not some other party got or disseminated the information legitimately.

Whether or not the government was right in collecting and leaking this information, that says absolutely nothing about whether or not the NYT has the right to publish that information.

established Common Law principles.

As has been mentioned multiple times, you neither know what common law actually is nor understand what it actually says.

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restless94110 (profile) says:

"At issue is that the NY Times apparently got access to some memos that Project Veritas’s lawyer had sent to Project Veritas,…"

Hmm, so the NYTimes colludes with the FBI and other State operators to get fed [by the politicized Feds illegally] privileged and proprietary information and a judge bars them because of their cheating illegal behavior?

And you say "apparnetly?" Yeah, sure, dude.

The judge was not confused. You are. You apparently think that PV’s getting tons of blabbing devils to admit on camera everything from outright censorship to phonying up their news and their stories is some kind of despicable process, when PV is apparently the only honest and groundbreaking journalist on the field.

You apparently love to smear journalism. What a hypocrite you are. You’ll be censored and smeared next time, buddy.

Apparently you are unable to see long term. You’re too angry about journalists reporting the facts. Apparently something is bad wrong with your ability to do journalism or at the very least to create impartial commentary.

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bhull242 (profile) says:

Re: Re:

Hmm, so the NYTimes colludes with the FBI and other State operators to get fed [by the politicized Feds illegally] privileged and proprietary information

[citation needed]

and a judge bars them because of their cheating illegal behavior?

Given the complete lack of evidence supporting your claim that the NYT had any “cheating illegal behavior”…

And you say "apparnetly?" Yeah, sure, dude.

“Apparently” in this context simply means “based upon appearances”. It doesn’t mean that that claim is dubious or anything; just that this appears to be the situation.

You apparently think that PV’s getting tons of blabbing devils to admit on camera everything from outright censorship to phonying up their news and their stories is some kind of despicable process,

Because it absolutely is, and they’ve been repeatedly shown that they have doctored footage and taken things out of context repeatedly. Indeed, very little of their stories hold up to scrutiny.

More importantly, this has nothing to do with the claims in the article.

You apparently love to smear journalism.

Project Veritas is journalism in the loosest of terms. More importantly, this is about protecting the NYT’s right to do journalism, not whether or not PV can do journalism.

What a hypocrite you are.

Let me know when Techdirt or the NYT resorts to any of PV’s tactics in pursuit of so-called “journalism”, or when Techdirt calls for a preliminary injunction, and then we can talk about hypocrisy.

You’ll be censored and smeared next time, buddy.

No one’s censoring Project Veritas (though they are censoring the NYT), and Techdirt has been smeared by the likes of you and Ayyaduras in the past.

Apparently you are unable to see long term.

Projection

You’re too angry about journalists reporting the facts.

This is about Techdirt defending the NYT’s right to report the facts. This has nothing to do with PV’s reporting of “facts”.

Apparently something is bad wrong with your ability to do journalism or at the very least to create impartial commentary.

This is an opinion blog. If you expected impartial commentary, you’ve come to the wrong place.

Also, apparently something is “bad wrong” with your ability to read.

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