by Matthew G. Andersson, American Thinker:
An old saying in law is that you should never be your own client. The Editorial Board of the New York Times shows why, recently declaring in its pages (“A Dangerous Court Order against the New York Times,” Editorial Board, 24 December) that a State of New York court ruled improperly against the paper. But the Times is more than wrong; it is misleading public readers about what the law says.
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The crux of the argument the Times’ editors make is that the judge has imposed a burden on their constitutional First Amendment rights (and deprived the public of an asserted “right to know”) by ordering them to return and electronically destroy any documents improperly obtained that are the property of Project Veritas and, specifically, those documents that are the product of private attorney-client privilege. The Editorial Board apparently feel that they had a “right” to these documents because they show a public interest wrong, concerning how Veritas may have acquired a “diary” from the Biden family, which Veritas discussed with its counsel to help ensure propriety.
If the people running things at the New York Times were licensed lawyers, their own media speech conduct would be regulated by the ARDC (Attorney Registration and Disciplinary Commission) Model Rules of Professional Conduct and the concept of “higher public duty.” They could be sanctioned if rules were enforced. As laymen editors, they can violate those guidelines and merely make up whatever legal interpretation they like (some call it “yellow journalism”).
While an argumentative culture is deeply ingrained in our law school training and legal industry, based on common law adversarial practice (two disputing parties fighting in a court of law in front of a judge, arbitrator, or jury), this kind of latitude, when directed through mass media especially, misdirects the public in such a way that they misunderstand their own laws and may have less confidence in the legal system. That is the real “danger.”
ARDC rules specifically address public confidence in law; the editors undermine it. This is especially relevant, as the case hinges on protected privacy — and maintenance of professional privacy among the public and their legal counsel (or their medical providers, for example) is central to faith in our legal system and its rules. Privacy also includes vast amounts of personal data, ironically in this case addressed by the 1974 Privacy Act, a response in part to “illegal surveillance and investigation of individuals by federal agencies that had been exposed during the Watergate scandal.” Interestingly, a Fourth Amendment protection could also conceivably be asserted against the newspaper, an effective operating arm of the Democrat party and current executive office, as a government agency.
The judge ruled correctly that such a confidentiality right is not subordinated to broader assertions in free speech. (New York has come a long way since 1860s Tammany Hall corruption.) The Times erroneously argued that the (still debated) Pentagon Papers case settled such disputes and that the judge should have followed that precedent. This is incorrect, faulty reasoning, for at least two reasons: no similar attorney-client privilege existed; and second, there was a specific public right-to-know argument involving extralegal government behavior. No such right exists in the private communications among a private company and private counsel outside a successful legal motion or order in a litigation setting.
There are other complications in this drama, including claims of libel by Veritas and the paper’s determination to appeal. Why is this so important to the Times? Because Project Veritas is a threat to its journalism and to its political agency. (The N.Y. Times is an effective arm of the DNC.) This lends itself to “lawfare” rather than law.
The editors also assert a “prior restraint” basis in the Court’s order. This is also an incorrect legal interpretation (pre-empting future use of free speech by muzzling or issuing an effective “gag”). It is, rather, a simple property issue: the judge ruled that private property (internal privileged communication) was improperly obtained by the newspaper and must be returned and erased. That it would have been further publicly exposed does not suddenly render it a First Amendment argument, but rather a traditional common law property conversion claim: the editors make the fascinating assertion that property acquisition by any means obtains unfettered property rights. (Apparently, their jurisprudence is “possession is nine tenths of the law.” If so, are they claiming ownership? And if owners, what consideration was shown?) Their “affirmative defense” citing the Pentagon Papers case is not a relevant precedent for private-sector privacy and property disputes. As UChicago Law’s emeritus Richard Epstein smartly argues, private law is also the fundamental underpinning of public law.
The Editors ultimately make a fallacy of relevance argument, or what is better known by the old saying “two wrongs don’t make a right.” The paper and its owners may have a dispute with how Veritas may have gained access to a Biden family diary, which may be legally actionable at some point; that does not, however, give the newspaper the liberty to privately interfere in attorney-client privilege outside a possible judicial order under a crime-fraud exception. The judge ruled properly for now, citing relevant law between two private parties whose dispute has not yet escalated beyond a simple tort claim.
The Times would be smart to honor the ruling and uphold the rule of law. Future litigation discovery against the paper and its management, in their prior and ongoing collaboration with numerous special interest media deception projects, would be the higher form of a public right to know. The Times underscores again that, at least editorially through its ownership, the public interest is not its object. The Fourth Estate is the new Fifth Column. As for constitutional law, the New York Times Editorial Board may wish to generally consult Article III.