President Biden calls himself a uniter, but few could have foreseen that he would bring together the left-leaning media establishment and its least favorite right-tilting undercover outlet, Project Veritas.
A slew of leading journalism and free-speech organizations has raised alarm over the Justice Department’s Nov. 6 raid on Project Veritas founder James O’Keefe’s home as part of an investigation into first daughter Ashley Biden’s allegedly purloined diary.
“[T]he mainstream media are holding their collective noses and supporting Project Veritas in its fight,” University of Minnesota media ethics and law professor Jane E. Kirtley said Monday in an op-ed in The Conversation. “It’s a matter of principle, but also of self-preservation.”
Mr. O’Keefe has denied stealing the diary, saying he turned it over to law enforcement after it was offered to him in September 2020 by anonymous “tipsters” through their attorneys. Project Veritas was unable to verify that the diary belonged to Ms. Biden and did not publish it, he said.
Even so, Mr. O’Keefe said agents handcuffed him and seized two of his cellphones in the predawn raid at his home in Westchester County, New York.
Rallying to his defense were the American Civil Liberties Union, the Committee to Protect Journalists and the Freedom of the Press Foundation. The Reporters Committee for Freedom of the Press filed a Nov. 15 motion asking a federal court to unseal the search warrant.
“The public and the press have a strong interest in access to these materials, which should provide information about the government’s justification for the search,” Reporters Committee Executive Director Bruce Brown said in a statement.
Not everyone was happy about lending aid and comfort to the guerrilla journalism outfit. ACLU senior staff attorney Brian Hauss took a swipe at the group before urging the court to name a special master to oversee the seized materials.
“Project Veritas has engaged in disgraceful deceptions, and reasonable observers might not consider their activities to be journalism at all. Nevertheless, the precedent set in this case could have serious consequences for press freedom,” Mr. Hauss said in a statement. “Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures.”
The FBI also seized phones and electronic devices from some current and former Project Veritas associates, according to Mr. O’Keefe, as part of a grand jury investigation into interstate transportation of stolen property. No charges have been filed.
In a Nov. 11 order, U.S. District Judge Analisa Torres told the Justice Department to pause its “extraction and review” of Mr. O’Keefe’s phones pending a hearing on the Project Veritas request for a special master, which the Justice Department has opposed.
One reason: As far as the Biden administration is concerned, Project Veritas isn’t a real journalism organization.
“As an initial matter, there is considerable doubt whether the practices of Project Veritas or its employees generally could be entitled to the protection of a qualified journalistic privilege,” U.S. Attorney for the Southern District of New York Damian Williams said Friday in a court filing.
“Project Veritas is not engaged in journalism within any traditional or accepted definition of that Word,” Mr. Williams said. “Its ‘reporting’ consists almost entirely of publicizing non-consensual, surreptitious recordings made through unlawful, unethical, and or/dishonest means.”
He added that “a filter team, working in consultation with counsel for [Project Veritas], is well-situated to protect any such information from disclosure to the investigative team, using similar protocols to those employed to protect the attorney-client privilege.”
Project Veritas attorney Paul A. Calli replied Monday that the “not-a-journalist” argument bolsters the case for a special master by revealing the department’s bias.
“[T]he government has pre-judged Project Veritas on the basis of hostile news articles and blog posts, ignored other news outlets that recognize the fact of Project Veritas’s journalism, and ignored the cases where Project Veritas’s journalism has been validated when challenged in court. The government’s denial of Project Veritas’s journalism demonstrates its rank hostility,” Mr. Calli said.
In fact, the Justice Department may have done more with its raid to enshrine Project Veritas in the journalism fraternity than anything in the organization’s 11-year history.
Said the Wall Street Journal in a Thursday editorial on the raid: “We don’t agree with or practice all of Mr. O’Keefe’s methods, but what he does is reporting that qualifies as journalism.”
Ms. Kirtley said that Mr. O’Keefe’s work, characterized by undercover sting operations, “doesn’t look much like traditional journalism,” but that “anyone who gathers and disseminates information to the public can claim to be ‘the press.’”
“That’s why the FBI raid concerns members of the news media. They fear they could be next,” she said.
Silha Center for the Study of Media Ethics and Law Director and Hubbard School Professor Jane Kirtley wrote for @ConversationUS about the FBI raid on Project Veritas leader James O’Keefe’s home. https://t.co/LUfO4CP54U
— Hubbard SJMC (@UMN_HSJMC) November 22, 2021
She cited a 2001 Supreme Court precedent holding that press organizations can disclose “important information illegally obtained by a third party, as long as the organization itself was not involved.”
“If Project Veritas is found guilty of a crime, any journalist who transports leaked or ‘stolen’ information across state lines could be charged with violation of the law. It’s unclear what that means today when so many documents are transmitted electronically,” Ms. Kirtley said. “Or, if the government narrowly defines ‘the press’ based on its political outlook or ethics, then no news organization is safe from attacks by future administrations.”
Others maintain that Project Veritas engages in activism, not journalism. The Associated Press described Project Veritas in a Nov. 9 article as an “activist group,” while the [U.K.] Guardian referred to the outlet on Friday as a “rightwing activist group.”
Trevor Timm, executive director of the Freedom of the Press Foundation, and the group’s advocacy director, Parker Higgins, said that whether Project Veritas should be defined as a bona fide journalism entity is irrelevant to the diary case.
“Whether we — or anyone for that matter — consider O’Keefe and Project Veritas to be ‘journalists’ is beside the point,” they said in a Nov. 17 statement. “If, in this particular case, they were engaged in acts of journalism — receiving information from a source and looking into whether they should publish it — the case may have serious implications for press freedom.”
Katherine Jacobsen, coordinator of the U.S. and Canada program for the Committee to Protect Journalists, said the government should provide a “clear link between members of Project Veritas and alleged criminal activity before searching their homes for information about source material.”
“While we do not endorse some of the tactics Project Veritas employs, the FBI’s recent raids on the organization’s founder and his associates represent a concerning overreach by law enforcement,” Ms. Jacobsen said in a Nov. 15 statement.
There’s little danger that the kumbaya moment will last. Journalism groups were among those who blasted a state court’s decision last week denying an appeal by The New York Times to lift a temporary ban on publishing materials related to its legal fight with Project Veritas.
Mr. Calli said Project Veritas was told that the diary was found in a place where the president’s daughter had stayed, along with several other personal items, in Florida.
After failing to authenticate the diary, Project Veritas offered it to Ms. Biden’s attorney, who refused to accept it. The group turned it over to state law enforcement in Florida, Mr. Calli said.
Excerpts were printed by an unrelated right-wing outlet prior to the election.
The raid comes as the Biden administration seeks to position itself as a defender of press freedom.
In May, Mr. Biden called it “simply wrong” to seize journalists’ phone records and emails, as was done during the Trump and Obama administrations. The Justice Department announced in May that it would no longer seek source materials from journalists in leak investigations.
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