While conservative group Project Veritas has received little mainstream media coverage, it won a major win against the New York Times this week in a potentially widespread defamation case. In a 16-page decision, New York Supreme Court Justice Charles Wood ruled against the newspaper’s motion to dismiss, finding that Project Veritas had produced sufficient evidence that the New York Times may have been caused by “actual malice” was motivated and acted with “reckless disregard” in several articles by Maggie Astor and Tiffany Hsu. The decision gives the project access to discoveries that can be extremely difficult for a news organization. This particularly follows another significant loss by the New York Times to Sarah Palin last year. Having two such defamation losses for the New York Times is ironic given its role in setting the New York Times precedent against Sullivan.
The case came from the time of the split in the civil rights movement. The New York Times had advertised seven times, alleging abuse of civil rights activists and the arrest of Martin Luther King Jr. Montgomery Public Safety Officer LB Sullivan sued for defamation and won under Alabama law. He received $ 500,000 – a big judgment for the time. Sullivan’s lawsuit was one of several civil lawsuits brought under state law against northern media reporting on violence against freedom marchers. The judgments posed a viable threat to both the media and the average citizen if they criticized our politicians.
The Supreme Court ruled that tort law cannot be used to override the protection of freedom of speech or the free press provided by the First Amendment. The Court sought to give the media “breathing space” by formulating this standard, which now applies to both civil servants and public figures. The status sets the higher standard first imposed on civil servants in the New York Times against Sullivan, and requires evidence of “real malice” when the media was actually aware of the falseness of a statement or ruthlessly ignored whether it was true or was wrong.
In this case, Astor and Hsu were accused of defaming Project Veritas by expressing their views as fact in the articles on video clips allegedly showing illegal voting practices by campaign workers for Congressman Ilhan Omar (D-Minn.). An Astor article on Sept. 29, titled “Project Veritas Video Was A Coordinated Disinformation Campaign, Researchers Say”, reported how academic researchers viewed the video as part of a “concerted disinformation campaign.” The article describes the work of the project as “deceptive”. A month later, Hsu followed up with a story titled Conservative News Sites Fuel Voter Fraud Misinformation, which again quoted academic experts who described the work as “deceptive” and part of a “propaganda feedback loop.” Other articles follow a similar narrative.
The opinion is interesting because it tells the New York Times to blur the line between opinion and fact. It is a common complaint as major news outlets give in to the “echo chamber” model of journalism – which appeals to the tendency of readers or viewers to offer weird coverage. The court calls the newspaper for such fuzziness, including this excerpt:
In a similar cycle, Fox News host Sean Hannity and Conservative Publications expanded the reach of a misleading video released last month by Project Veritas, a group led by conservative activist James O’Keefe. The video alleged, with no named sources or verifiable evidence, that the campaign illegally collected ballots for Representative Ilhan Omar, a Minnesota Democrat (NYSCEF # 8 and # 9).
The question is whether Project Veritas should be given the opportunity to prove the case and the court ruled that it:
Actionable assertions of fact are closely tied to what defendants now characterize as opinion. In part, the defendants argue that their statements describing Veritas’ video as “deceptive”, “false” and “without evidence” were merely an opinion that could not be judged true or false. However, if a draftsman inserts an opinion into a news article (and tries to invoke legal protection as an opinion), it stands to reason that the writer should be under an obligation to alert the reader, including a court that may need to determine whether to do so Case is fact or opinion that it is opinion. The articles that are the subject of this action are labeled “deceptive” video, but the dictionary definitions of “disinformation” and “deceptive” provided by the defendants’ attorney (NYSCEF Document 14 at footnote 29) undoubtedly apply to that Failure of Astor and Hsu Notice that they put their opinions in news articles as they now claim. Likewise, the defendants now appear to be claiming that the advertisement for the video was where the deception took place (affidavit from Astor NYSCEF Doc. 85 at paragraphs 8-9; affidavit from NYSCEF Doc. 86 at paragraphs 7- 8; pages 7-8, 11-12, 23, 28). There is, however, a difference between viewing a disappointing “fight of the century” and reporting that the pay-per-view fee wasn’t worth it or lived up to the hype and reporting to the public that pay-per-view View knowingly marketed a fight that has been resolved. Plaintiff is entitled to attempt to determine whether the writers of NYT were intentionally and / or recklessly inaccurate, or whether they were inaccurate, sloppy, or slightly less.
Note that this is not a finding of actual malice, but it does allow the project to dive into the discovery, including debris, and possibly a try.
The New York Times also attempted a Hail Mary claim that Project Veritas was “evidence of defamation”. We have already discussed such claims as very difficult to substantiate. The court correctly and promptly overturned this New York Times claim. The Second Circuit has played a significant role in this area as well, due to its key position in Cardillo v. Doubleday & Co., Inc. in 1975. This case concerned a book, My Life in the Mafia, in which plaintiff Robert L. Cardillo was accused. of various crimes. Cardillo had a long record and served time in federal prison. The second circuit upheld the dismissal of the case because it “pondered[ed] For legal reasons, this complainant is libel-proof for the purposes of this case. “
These are extremely rare decisions and I believe that using the defense in this case was a mistake. In legal disputes, there is a tendency to throw everything at an opposing party and let the court resolve it. It can be cathartic, but it can be expensive. In this case, the newspaper likely lost credibility with the court, highlighting the alleged bias in claiming that this conservative investigative group has no reputation to lose. It is highly unlikely that this type of lawsuit will be successful, but it is very likely that other claims in the motion for dismissal will be undermined.
In the end, the court finds that there is enough evidence of “real malice” by the New York Times to continue the case:
The court finds that the documentary evidence and facts alleged by Veritas are sufficient to cover its charge. The facts presented by Veritas could point to more than the usual prejudice of the garden variety media and support a plausible conclusion of actual malice. There is an essential legal basis for the plaintiff to make discoveries and then attempt to satisfy their higher proof of liability with clear and convincing evidence of actual malice. Maliciousness focuses on the defendant’s state of mind as to the truth or falsehood of the information published. There is an essential legal and factual basis here that the Defendants actually acted maliciously, that is, with the knowledge that the statements in the articles were false or regardless of whether they were false or not. Veritas alleged that it was in fact malicious by providing facts sufficient to demonstrate the Defendants’ alleged disregard for the truthfulness of their statements. Accordingly, at this very early stage in the litigation, Veritas provided sufficient information to stand the defendants’ petitions and further proceedings are required to resolve the issues raised.
Opinion could be a critical shot for many media outlets that the blurring of opinion and facts could come at a high price. In particular, the New York Times argued that there was nothing wrong with articles because the reporters were giving their opinions. The Veritas project found that the newspaper’s own ethical guidelines forbid news reporters from expressing their subjective opinions in the news. Efforts to argue that reporters can link fact to opinion reflect a broader discussion of how journalism is changing. Recently, columnist Andrew Sullivan (who himself was the target of a cancellation campaign to express opposing viewpoints) criticized the media for emphasizing storytelling over news. Indeed, we have discussed how journalist professors have publicly called for an end to objectivity in journalism as this is too restrictive for reporters in their search for “social justice”. This trend towards advocacy journalism has resulted in polls showing record lows for media trust. The cost of changing the way journalism sees it can be not only a loss of core confidence, but core legal protection as well. The New York Times could obviously still prevail in this case. However, difficult months of discovery lie ahead without this decision having to be reversed. The actual malevolence standard is a great protection for the media. However, once a court finds a basis for the allegation, a variety of pieces of evidence become material, including confidential communications between reporters, some of those sources or subjects. This can lead to lengthy litigation over confidentiality and demands for ex-party and camera reviews by the court. I expect to be teaching this case in my class next year when we look at defamation. Here’s the point: Project Veritas versus New York Times