OPINION:
It isn’t every day the ACLU comes out swinging for conservative undercover investigative journalists, but that’s exactly what happened on Tuesday.
The left-leaning civil liberties organization released a statement defending Project Veritas — the undercover investigative journalism outfit run by sting operator James O’Keefe — after Project Veritas accused prosecutors of misleading a federal court and inappropriately trying to obtain unwarranted gag order as part of a federal investigation into the alleged theft of Ashley Biden’s diary.
The controversy stems from an earlier event in November when the FBI raided the residences of Mr. O’Keefe and two Veritas employees with the aim of seizing records from phones and computers. Federal agents conducted the raid with warrants, but the incident raised concerns since warrantless searches against members of the media have been outlawed by the Privacy Act of 1980.
Congress passed the law after an unfavorable 1978 Supreme Court case, Zurcher v. Stanford Daily, which permitted the search of a student newspaper. The 1980 law was passed to protect “work product” and “documentary materials” created by journalists, ensuring they can only be obtained by a subpoena or warrant.
Because of the heightened scrutiny surrounding the First Amendment, the federal judge overseeing Veritas’ case granted a defense request to appoint a neutral party called a “special master” to conduct an independent review of the data seized on the group’s devices to separate any communications protected under attorney-client privilege or other safe harbors.
But on Tuesday, attorneys for Veritas at the firm of Calli law claimed that for several months before the November 2021 raids, prosecutors used nondisclosure orders to conceal the government’s investigative actions including court orders to obtain journalists’ emails and grand jury subpoenas. In a 12-page letter from Calli to federal Judge Analisa Torres, the firm accused the U.S. Attorney’s Office for the Southern District of New York of “total disregard for the First Amendment and with the utmost hostility towards the press.”
The effect of all this, Calli argued was the complete circumvention of the independent review process Judge Torres established.
So how serious is this?
“We’re concerned that the precedent set by this case could have serious consequences for press freedom,” said ACLU Senior Staff Attorney Brian Hauss. “We’re deeply troubled by reports that the Department of Justice obtained secret electronic surveillance orders requiring sweeping disclosure of ‘all content’ of communications associated with Project Veritas email accounts, including attorney-client communications.”
Mr. Hauss then argued that following the government’s conduct, the court should intervene to remedy the government’s abuse of power.
As Mr. O’Keefe’s firm concluded in its complaint to the court, “The government’s clandestine invasions of journalist’s communications corrode the rule of law.” Corroding the law is one harmful result of these kinds of Machiavellian practices. Creating a chilling effect on free speech is another.
If such practices continue, they may warrant an independent internal review or Special Counsel investigation to protect the press — and public — until the nation’s top enforcement agency once again learns how to comply with its own departmental policy — and the law.
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