Project Veritas Wins Victory Against New York Times In Defamation Action

While it has received little coverage in the mainstream media, the conservative group Project Veritas won a major victory against the New York Times this week in a defamation case with potentially wide reach.  In a 16-page decision, New York Supreme Court Justice Charles Wood ruled against the newspaper’s motion to dismiss and found that Project Veritas had shown sufficient evidence that the New York Times might have been motivated by “actual malice” and acted with “reckless disregard” in several articles written by Maggie Astor and Tiffany Hsu. The decision will allow the Project access to discovery which can be extremely difficult for a news organization.

Notably, this follows another significant loss by the New York Times to Sarah Palin last year. Having two such losses for the New York Times in the defamation area is ironic given its role in establishing the precedent under New York Times v. Sullivan.

The case came out of the highly divisive period of the civil rights movement. The New York Times had run an advertisement referring to abuses of civil rights marchers and the arrest of Martin Luther King Jr. seven times. The Montgomery Public Safety commissioner, L. B. Sullivan, sued for defamation and won under Alabama law. He was awarded $500,000 — a huge judgment for the time. Sullivan’s lawsuit was one of a number of civil actions brought under state laws that targeted Northern media covering the violence against freedom marchers. The judgments represented a viable threat to both media and average citizens in criticizing our politicians.

The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. The status imposes the higher standard first imposed in New York Times v. Sullivan for public officials, requiring a showing of “actual malice” where media had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.

In this case, Astor and Hsu were accused of libeling Project Veritas by stating their opinions as fact in the articles on video clips that purportedly showed illegal voting practices by campaign workers for Congresswoman Ilhan Omar (D-Minn.).  One article by Astor on Sept. 29 was titled “Project Veritas Video Was a ‘Coordinated Disinformation Campaign,’ Researchers Say,” and reported how academic researchers found the video to be part of a “concerted disinformation campaign.” The article describes the project’s work as “deceptive.” Hsu followed up a month later with a story titled “Conservative News Sites Fuel Voter Fraud Misinformation” that again quoted academic experts in describing the work as “deceptive” and part of a “propaganda feedback loop.” Other articles follow a similar narrative.

The opinion is interesting because it calls out the New York Times for blurring the line between opinion and fact. It is a common complaint as major news media yield to the “echo chamber” model of journalism — appealing to the bias of readers or viewers in offering slanted coverage.  The court calls out the newspaper for such blurring including this excerpt:

In a similar cycle, the Fox News host Sean Hannity and conservative publications magnified the reach of a deceptive video released last month by Project Veritas, a group run by the conservative activist James O’Keefe. The video claimed without named sources or verifiable evidence that the campaign for Representative Ilhan Omar, a Minnesota Democrat, was collecting ballots illegally (NYSCEF#8 and #9)

The issue is whether Project Veritas should be given a chance to prove it case and the court found that it should:

Actionable assertions of fact are tightly intertwined with what defendants now characterize as opinion. In part, Defendants argue that their statements describing Veritas’ Video as “deceptive,” “false,” and “without evidence” were mere opinion incapable of being judged true or false. However, if a writer interjects an opinion in a news article (and will seek to claim legal protections as opinion) it stands to reason that the writer should have an obligation to alert the reader, including a court that may need to determine whether it is fact or opinion, that it is opinion. The Articles that are the subject of this action called the Video “deceptive”, but the dictionary definitions of “disinformation” and “deceptive” provided by defendants’ counsel (NYSCEF doc 14 at footnote 29), certainly apply to Astor’s and Hsu’s failure to note that they injected their opinions in news articles, as they now claim. Likewise, Defendants now appear to assert that the promotion of the video was where the deception was (Astor affidavit NYSCEF doc 85, at paragraphs 8-9; Hsu affidavit NYSCEF doc 86 at paragraphs 7-8; Memorandum of Law NYSCEF doc 14, at pages 7-8, 11-12, 23, 28). But there is a difference between viewing a disappointing “fight of the century” and reporting that it was not worth the Pay per-View fee or did not live up to the hype, and reporting to the public that Pay-per-View knowingly marketed a fight that was fixed. Plaintiff is entitled to try to establish whether NYT’s writers were purposely and/or recklessly inaccurate, or whether they were inaccurate, sloppy, or something less.

Note that this is not a finding of actual malice but it will allow the Project to plunge into discovery, including depositions, and possible a trial.

The New York Times also attempted a Hail Mary claim that Project Veritas was “libel proof.”  We have previously discussed such claims as very hard to establish.  The court correctly and quickly dispensed with that claim by the New York Times.  The Second Circuit has played a significant role in this area as well due to its foundational 1975 opinion in Cardillo v. Doubleday & Co., Inc. That case concerned a book My Life in the Mafia that accused the plaintiff, Robert L. Cardillo, of various crimes.  Cardillo had a long record and was serving time in the federal penitentiary. The Second Circuit affirmed the dismissal of the case because it “consider[ed] as a matter of law that appellant is, for purposes of this case, libel-proof.”

These are extremely rare rulings and, in my view, the use the defense in this case was a mistake. There is a tendency in litigation to throw everything at an opposing party and let the court sort it out.  It may be cathartic but it can be costly. In this case, the newspaper likely lost credibility with the court and highlighted the alleged bias in claiming that this conservative investigative group has no reputation to lose. It is the type of claim that is highly unlikely to succeed but has a high likelihood of undermining other claims in the motion to dismiss.

In the end, the court finds that there is sufficient evidence of “actual malice” by The New York Times to proceed in the case:

The court finds that the documentary proof and the facts alleged by Veritas are sufficient to meet its burden. The facts submitted by Veritas could indicate more than standard, garden variety media bias and support a plausible inference of actual malice. There is a substantial basis in law to proceed to permit the plaintiff to conduct discovery and to then attempt to meet its higher standard of proving liability through clear and convincing evidence of actual malice. Malice focuses on the defendant’s state of mind in relation to the truth or falsity of the published information. Here there is a substantial basis in law and fact that Defendants acted with actual malice, that is, with knowledge that the statements in the Articles were false or made with reckless disregard of whether they were false or not. Veritas alleged actual malice by providing facts sufficient to demonstrate Defendants’ alleged disregard for the truthfulness of its statements. Accordingly, at this very early stage of the litigation, Veritas’ submissions were sufficient to withstand defendants’ motions, and further proceedings are necessary to resolve the issues raised.

The opinion could prove a critical shot across the bow for many in the media that the blurring of opinion and fact could come at a high price.  Notably, The New York Times argued that there was nothing wrong with articles because the reporters were stating their opinions.  Project Veritas noted that the paper’s own ethical policies prohibit news reporters from injecting their subjective opinions into news stories. 
The effort to argue that reporters can interlace fact with opinion reflects a broader discussion of how journalism is changing. 
Recently, columnist Andrew Sullivan (who was himself the target of a cancelling campaign for expressing opposing viewpoints) criticized the media for emphasizing narratives over news.  Indeed, we have discussed how journalism professors have publicly called for an end of objectivity in journalism as too constraining for reporters in seeking “social justice.”  This trend toward advocacy journalism has led to polls showing record lows in terms of trust for the media. The cost of the changing view of journalism may not only be in the loss of core trust but of core legal protections.
The New York Times obviously could still prevail in the case. However, it is now facing difficult months of discovery absent a reversal of this decision. The actual malice standard is a great protection for the media. However, once a court finds a basis for the allegation, a wide array of evidence become material including the confidential communications between reporters can some of these sources or subjects. That can lead to drawn out litigation over confidentiality and demands for ex parte and in camera reviews by the court. 
I expect to be teaching this case next year in my torts class when we deal with defamation.
Here is the opinion:  Project Veritas v. New York Times

404 thoughts on “Project Veritas Wins Victory Against New York Times In Defamation Action”

  1. Bottom line to all those trashing this article; Had it been the New York Post or WSJ that lost the case, you’d be commenting about how justified and correct the judgment was.

    1. If you are so concerned about pointless comments – why are you posting ? And particularly this one ?

      I see you have now switched to “overwhelmed”.

      I will take that as a compliment and the quality of my posts.

      1. ‘I see you have now switched to “overwhelmed”.

        I will take that as a compliment and the quality of my posts.’ -john Say

        I guess you can’t read, John.

        It was “overwhelmed” in the original comment, and it’s still “overwhelmed.”

        Verbal twisting and spinning are frequently seen in your generally low-quality, and almost always run-on comments.

        But, hey, carry on.

        Almost 30% of the nearly 400 comments are yours.

        1. “It was “overwhelmed” in the original comment, and it’s still “overwhelmed.””
          Your point ?

          “Verbal twisting and spinning”
          No, that is your problem.

          The overwhelming majority of my comments directly address what another poster – often YOU have written.
          In response to exposing YOUR shallow thought – we get “verbal twisting and spinning”.

          Leftism can not survive in the real world. Therefore YOU must hem and haw.
          YOU must mangle words.

          Sometimes I use your own techniques against you – but that is your problem not mine.

          “are frequently seen in your generally low-quality, and almost always run-on comments.”

          More evasiveness – rather than confron the actual issues or arguments – “twist and spin” – change topics,
          Attack the the person, rather than the argument, deflect, hem and haw, dodge, revert to word mangling.

          When you can not argue facts, logic, reason – argue comment frequency or size.

          Pretend that a limitless resource is limited.

          Anything but confronting the truth.

          The very nature of your own responses damns you.

          If you had arguments you would make them.

          Instead you shift every debate – away from the substance and nearly always into an attack on the person.

          Have you no shame ?

          1. ‘I see you have now switched to “overwhelmed”.

            I will take that as a compliment and the quality of my posts.’ -john Say

            ======

            Again:

            I guess you can’t read, John.

            It was “overwhelmed” in the original comment, and it’s still “overwhelmed.”

            I simply answered you, John. It wasn’t a personal attack, as you pretend.

            You should ask and answer your own question:

            “Have you no shame?”

            1. Cut the crap.

              You continue to post as anonymous – you have no claim to a previous post.

              You claim that you are not engaged in personal attacks is lame – and stupid and typical of leftists.

              I do not care about your “personal attacks” – but the least you could do is by honest with yourself.

              How is a reference to post volume relevant to the truth or error of any underlying debate ?

              Unarguably you are pushing fallacies not arguments.

          2. “The overwhelming majority of my comments directly address what another poster – often YOU have written.” — john Say

            There are several people who post anonymous comments.

            Deal with it.

            1. “There are several people who post anonymous comments.

              Deal with it.”

              I have over and over.

              Post as anonymous and you are not entitled to even base level credibility or presumption of integrity.

              You can defame and be held accountable, but you can not be defamed.

              You have no identity.

              If you want the presumptions that come with identity – use one.

              Otherwise I am free to decide all anonymous posters are one, and in the same argument that each is distinct.

              1. Do whatever the hell you like. Think whatever you like, as well.

                It’s a blog. Get over yourself.

                Integrity and credibility are found in the real world, not in the comments section of a blog.

                1. “Integrity and credibility are found in the real world, not in the comments section of a blog.”

                  The comments section of a blog IS part of the real world.

                  If you are unable to muster integrity and credibility there – there is no reason to trust you anywhere else.

                2. If you are not to be taken seriously – why do you post ?

                  Should I just reply to each and every post you make from now forward:

                  “Anonymous does not accept that integrity or credibility are necessary in blog posts, therefore you must assume he is wrong or lying”

                  1. “why do you post ?”

                    Because I can. Anyone can.

                    Do whatever the hell you like, John Say.

                    1. ““why do you post ?”
                      Because I can. Anyone can.”

                      That is not a reason.
                      I can spread tacks all over my floor. I don’t.
                      Most people do not do things merely because they can.

                      So again.

                      WHY DO YOU POST ?

                      “Do whatever the hell you like, John Say.”

                      I do, and you continually try to control that – which you can not.

                      Grow up.

                      You are free to offer your positions.
                      You are free to criticise the postions or person of others.

                      You are NOT free to preclude others from doing the same.

                      That process is called DEBATE.
                      But call it whatever you want.

                      When you shift from legtiimate argument – you can expect to be called on it.

                      You are free to make stupid, fallacious arguments.
                      You are not free to prevent others from taking you to task for doing so.

                      You can not escape criticism by pretending you are not debating.

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