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

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