One of the most disturbing legal threats to the free press in decades looms quietly in a New York courtroom, largely unnoticed outside the newspaper industry but potentially devastating to democracy. A judge made a ruling that violates the First Amendment on its face by engaging in pre-restriction – that is, not just punishing a newspaper for something it printed, but by simply punishing a newspaper for something it printed. preventing in advance to print out specific information or even to investigate a specific topic.
It is a historically rare and extreme form of government censorship which, in the few times it has been attempted in modern America, has generally focused on matters of national security. The current case has nothing to do with it. If the current majority of the United States Supreme Court truly adheres to the originalist principles it claims, it will quickly end this dangerous threat to a fundamental principle of the Constitution.
New York State Judge Charles D. Wood’s pre-restriction ruling last month comes in a libel lawsuit against The New York Times by Project Veritas, the trolling organization of right wing who uses undercover operations and other deceptive stunts in an attempt to embarrass liberal politicians. and the news media. Regardless of that lawsuit, The Times had published reports based on internal Veritas documents it obtained – including notes from the group’s attorney, advising the group how far it could go with its undercover operations. âBefore breaking federal lawsâ.
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Veritas claims that The Times, by publishing internal legal advice, interfered with solicitor-client privilege in relation to the libel suit. Basically, they asked a judge to force the newspaper to stop talking about them.
This is exactly what Wood did on November 18, ordering The Times to temporarily cease publication of additional articles based on internal Veritas documents, and to “cease further efforts to solicit or acquire” such documents. As of this week, it was unclear how long this order would be in place.
Wood described the debate as a conflict between two âfundamental principlesâ of law: âfreedom of the press and solicitor-client privilegeâ. In order not to dismiss the importance of the latter, but these two imperatives are not on the same plane. The founders put press freedom in the first line of the First Amendment because without it, no one else can be protected.
The last time The Times faced earlier restrictions was in 1971 – half a century ago – when the Nixon administration argued that the Pentagon Papers should be removed for reasons of national security. The Supreme Court disagreed, ruling that the administration had failed to meet the heavy burden of proof for such an extreme violation of a constitutional right.
If it was a tough decision, it shouldn’t be. Not slamming New York’s decision, and slapping it hard, could open the door to routine censorship that would be difficult to shut down.
Reprinted from the St. Louis Post-Dispatch distributed by Creators.Com