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An FBI raid on Project Veritas leader James OKeefes home in early November 2021has sparked an unusual demonstration of support from the very establishment media that OKeefe has spent his career targeting and trashing.

The raid was conductedon the suspicionthat OKeefe and former Project Veritas staffers were implicated in the theft of President Joe Bidens daughter Ashleys diary before the 2020 election. The Department of Justice said the cellphones sought in the raid would reveal evidence of aiding and abetting the transport of stolen property worth $5,000 or more across state lines, and of failure to report the theft to law enforcementin violation of federal law.

Project Veritas saysthat the phones contain attorney-client privileged information and newsgathering materials protected by the First Amendment.

OKeefe is the self-describedprogressive radicaland founder and CEO ofProject Veritas. His organization hasa long history of conducting undercover sting operations, frequently targeting progressive nonprofits, politicians and the news media with the stated aim of disclosing bias, hypocrisy and illegal activity.

Manyjournalists repudiate Project Veritas and its methods, contending that the organization is ideologically driven and routinely violates established norms of media ethics.

As aprofessor of media ethics and law, Ive been grappling with how to think about Project Veritas and its escapadesfor years. Like many media lawyers, I wish it would just go away.

Nevertheless, media organizations and their supporters, such as theAmerican Civil Liberties Union, theCommittee to Protect Journalists, and theReporters Committee for Freedom of the Press, of which I served as executive director from 1985 to 1999, rallied to protest the searches and seizures as a possible violation of the First Amendment right of a news organization to gather information. They demanded answers about why Project Veritas was targeted in the investigation. And they made clear that they were concerned about more than just Project Veritas, whose methods they have often decried.

Project Veritas bills itself a nonprofit journalism enterprise, and itswebsite touts its many effortsto achieve a more ethical and transparent society.

But its work doesnt look much like traditional journalism. One of its morenotorious undertakingsinvolved making secret recordings at various offices of the Association of Community Organizations for Reform Now in 2009, purporting to show ACORN staffers advising OKeefe and his associate how to evade taxes and engage in human trafficking.

Although a subsequent investigation by theCalifornia Attorney General concluded that the videos had been severely edited,their release promptedCongress to freeze federal funding to ACORN. ACORN was eventually exonerated by the Government Accountability Office, but Project Veritas continues to brag about its takedown of the organization as one of itssuccesses.

Project Veritas also revels in exposs of what it callspolitical bias in the mainstream media, including CNN, ABC, National Public Radio, and The Washington Post. Recently, it sued The New York Times in state court in Westchester County, New York, claiming that the newspaperdefamedit by calling its videos alleging voter fraud in Minneapolis misinformation. It has now used that case as the means to obtain acourt orderto compel the Times to curtail its reporting about the investigation, which Project Veritas claims came from government leaks an extraordinary request for prior restraint unprecedented since theSupreme Courts Pentagon Paperscase in 1971, and hardly consistent with support of the First Amendment.

The Supreme Court has said that the First Amendmentprovides some protection for newsgathering, although it does not permit the news media toviolate laws that apply to everyone. Because the government does not issue licenses to journalists, anyone who gathers and disseminates information to the public can claim to be the press. Thats why the FBI raid concerns members of the news media. They fear theycould be next.

For their part,the attorneys representing Project Veritas saythat two anonymous individuals, who claimed they had legally acquired the diary after Ashley Biden abandoned it at a house in Florida, offered to sell it to Project Veritas for possible publication. After the lawyers for both parties negotiated an arms length agreement, Project Veritas took delivery of the diary.

Project Veritas claims that it couldnt authenticate the diary to its satisfaction and after trying unsuccessfully to return it to Bidens lawyer,sent it back to local law enforcement officials.

If this version of events is true, U.S. Supreme Court precedent established in a 2001 press-related case,Bartnicki v. Vopper, should apply. There, the high court ruled that a media organization can disclose important information illegally obtained by a third party, as long as the organization itself was not involved.

A strangers illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern, Justice John Paul Stevens wrote.

If Project Veritas was not involved in the theft of the diary, it could also be covered by thePrivacy Protection Act of 1980, which bars both federal and state law enforcement from seizing journalists work product and documentary materials except in very limited circumstances.

In fact, the Justice Department has been prohibited from even subpoenaing journalists byAttorney General guidelinesthat date back to 1974 although investigations into leaks of classified information led to notable exceptions to this rule during theObama and Trump administrations.

Earlier this year, Biden said it wassimply, simply wrongto compel journalists to reveal their sources, andAttorney General Merrick Garlandpromised in July to beef up the guidelines and make them law to ensure that future administrations would also be bound by them, though he has yet to do so.

Project Veritassays it is covered by the Privacy Protection Act, which protects those engaged in public communication, as well as the guidelines.

But in defending the FBI raid on OKeefes home, the government contends that it has followed all applicable regulations and policies regarding what it calls potential members of the news media suggesting that they think Project Veritas isnt one.

Until the underlying affidavits supporting the warrants are unsealed, we wont know whether the U.S. Attorney thinks that Project Veritas committed a crime, or that it isnt a news organization. Either possibility has serious ramifications for all media.

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. Its unclear what that means today when so many documents are transmitted electronically.

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.

Either way, the mainstream media are holding their collective noses and supporting Project Veritas in its fight. Its a matter of principle, but also of self-preservation.

Jane Kirtley is the Silha Professor of Media Ethics and Law at the University of Minnesota. This article is republished from The Conversation under a Creative Commons license.

Read more from the original source:
Project Veritas and the mainstream media are strange allies in the fight to protect press freedom - Nieman Journalism Lab at Harvard