The New York Times Is Protected by Freedom of the Press. So Is James O’Keefe.

Yesterday, a state judge issued an order that sought to restrict how The New York TimesCovers Project Veritas, which is a “non profit journalism enterprise” that was founded by James O’Keefe (conservative activist). The TimesThe paper, which is contesting the order, correctly points out that it raises serious First Amendment questions. The paper seems to be confused by the amendment’s rights, suggesting that the “freedom” of press is only for “the news media”. This interpretation works well for TimesIt is inconsistent with historical evidence about how the public understood the phrase originally.

Project Veritas filed suit against the government in November 2008. TimesFor defamation, the newspaper’s reporting on the “bombshell investigation report” of the group regarding alleged voter fraud in Minnesota was cited. The complaint states that the Times Project Veritas reported, consisting of two videos in total, was “deceptive” and claimed it relied only on “unidentified sources,” “it offered no evidence for ballot harvesting”, and that it was part a coordinated disinformation campaign to distract attention from its coverage of the tax returns of former President Donald Trump.

Charles D. Wood from Westchester County Supreme Court is presided over the defamation matter and yesterday ordered that it be closed. TimesNot to publish any articles which are based upon internal Project Veritas legal memorandas. Wood made the ruling one week after the TimesPublished a report stating that the documents were “revealed the extent to which group members have worked with their lawyers to determine how far deceptive reporting practices could go before it runs afoul federal laws.”

Project Veritas suggested to Project Veritas that documents had been leaked from a government source. TimesAfter the FBI obtained the documents during an O’Keefe’s November 6 home search that was part in an investigation into Ashley Biden’s diary theft. Eric Cochran, and Spencer Meads were also searched by the FBI. Project Veritas claims it purchased the diary last year from a third-party, but it was not able to verify its authenticity so it turned it over to law enforcement and did not publish any of its contents. This is the The TimesThe FBI denied the claim that they had used the documents, but the FBI claimed it did use the legal notes it received prior to its searches.

Project Veritas requested Wood to ban the Times This article was the last to be published based upon the internal documents. It described the story of last week as “a naked and vindictive effort to harm and embarrass litigation adversaries by completely disregarding sanctity the attorney-client relationship.” The organization claimed that the memos were obtained “surreptitiously”. TimesWood asked the question of the lawyer who “circumvented” the defamation case discovery. Wood asked Wood TimesThe paper received a response from Project Veritas, in which it instructed them to stop publishing or sequester any of the Plaintiff Project Veritas’ confidential materials.

TimesDean Baquet, Executive Editor of Wood’s Order, described it as “prior restraint”, which clearly violates the Supreme Court’s First Amendment precedents. Baquet stated in an email that the ruling was unconstitutional. Baquet stated in an emailed statement that a court can silence journalism and it is a failure of its citizens. It also undermines the right of people to be informed. In the landmark case of the Pentagon Papers, the Supreme Court made this clear. It was a groundbreaking ruling that prohibited prior restraint from preventing the publication newsworthy journalism. It is evident that this principle applies. This decision should be immediately reviewed.”

This is a story on the controversy TimesMichael Grynbaum, reporter notes that the order “raised immediate concerns among First Amendment supporters, who called it an infringement of basic constitutional protections to journalists.” However, he suggests Project Veritas is not entitled to those protections. Project Veritas has tried to project itself as a journalistic organisation protected under First Amendment rights.

Grynbaum quotes a Grynbaum November 14 press release where the American Civil Liberties Union (ACLU), raised concerns over the FBI’s search warrants on O’Keefe Cochran and Meads. Grynbaum says that although the ACLU “criticized the Justice Department’s invasive searches and seizures” of property associated with the group, Grynbaum also reports that it said “reasonable observers may not consider their actions to be journalism at any level.”

Is this relevant? It’s not. Grynbaum quotes Brian Hauss, senior staff lawyer with the ACLU Speech, Privacy and Technology Project, as expressing disapproval for Project Veritas’ shady activities in the press release. However, he made clear that the FBI’s investigation into Project Veritas raised First Amendment concerns, no matter how the organization is classified.

Hauss stated that Project Veritas engaged in dishonest deceptions and it is possible for reasonable observers to not view their activities as journalism. Hauss stated that the case set a precedent for freedom of expression. It should not have made them subject to extensive searches and seizures, unless the government was able to prove that Project Veritas employees were directly implicated in the criminal theft.

Grynbaum seems to believe that ACLU’s concerns were limited to the Fourth Amendment’s compliance with FBI search warrants. However, the ACLU cautioned that “the precedent established in this instance could have serious consequences to press freedom,” suggesting that media freedom goes beyond what Grynbaum and Hauss may recognize as legitimate journalism.

Eugene Volokh, a UCLA law professor who is also a First Amendment scholar, has demonstrated that the notion that freedom of press is something that only bona fide journalists can enjoy is fundamentally wrong. Historical records show that the term “freedom to the press” does not refer to a specific profession, but to technology for mass communication.

A 2012 University of Pennsylvania Law Review article, Volokh carefully considered how freedom of the press was understood when the Constitution was written, in the late 18th and early 19th centuries, when the 14th Amendment (which extended First Amendment limits to the states) was ratified, in the late 19th and early 20th centuries, and in Supreme Court decisions since the 1930s. It evidence clearly shows that the provision was meant to protect anyone who uses the printed word—and, by extension, media such as TV, radio, and the internet—to communicate with the public.

The TimesHowever, it is still obsessed with trying to police the boundary between true journalism (what it does) or fake journalism (what Project Veritas does). Project Veritas has occupied the gray zone between investigative journalism, political spying and journalistic reporting for a long time.” Times reporters Adam Goldman and  say in the story that prompted Wood’s order. The organization’s “sting operations,” they explain, “typically diverge from standard journalistic practice by employing people who mask their real identities or create fake ones to infiltrate target organizations.”

While that observation is grist for a debate about journalistic ethics, it is constitutionally irrelevant. GoldmanAnd Mazzetti say Project Veritas’ “defense” in the case of the purloined diary “will rely in part on casting itself as a journalistic organization protected by the First Amendment.” Project Veritas argues that freedom of speech isn’t a right to steal property from another person, but it does allow them to do so.[s].”

Grynbaum makes a mistake when he suggests that Project Veritas has freedom of expression if it is a “journalistic organization” protected by First Amendment rights. All Americans are entitled to press freedom, no matter if they work for an organization everyone recognizes as “the news media.” Goldman, Mazzetti and others are also incorrect in suggesting that Project Veritas needs to show it’s a “journalistic organization protected by Section 1 of the Constitution.”

There is an error in thinking that the freedom to press is only for professional and ethical journalists. The mistaken assumption that journalists are restricted to professional (and ethical!) press was evident in much of the comment about Julian Assange’s federal case. Assange faces charges for violating Any person who is not eligible to receive the information. This provision is a criminalization of investigative journalism. Times() regularly rely on classified data when reporting on national security concerns

Professional journalists are widely disapproving of Assange. Many of them argued that Assange did not have the right to what Grynbaum refers to as the “First Amendment rights granted news media.” The Espionage Act does not make this distinction and the First Amendment doesn’t either. An Assange prosecution for publication of classified information is a clear threat of freedom of expression, regardless of his self-identification of himself as a journalist.

Freedom of speech is available to all people, even those who are deplorable and say terrible things. The same applies to journalists who publish emails making Hillary Clinton look unpopular and Trump supporters that operate in “a grey area between investigative journalism or political spying.” It is this way that constitutional rights work. If you are a member of the TimesTo claim the freedom to press itself, the country must acknowledge that different ideologies and methods will have the right to use the same rights.