A New York Supreme Court justice has advanced a lawsuit by Project Veritas against the New York Times that accuses reporters of publishing “defamatory attacks” on the non-profit’s investigation into “illegal ballot harvesting in Minnesota.”
The Times reporters can now be deposed under oath after Justice Charles D. Wood of the Supreme Court of New York in Westchester County denied the paper’s motion to dismiss the case.
The judge, in his order Thursday, found “a substantial basis in law and fact that the defendants acted with actual malice, that is, with knowledge that the statements in the article were false or made with reckless disregard of whether they were false or not.”
The next step is for Project Veritas to conduct discovery, which could include putting Times reporter Maggie Astor and executive editor Dean Baquet under oath to answer questions about their intent and motives.
The Times called the Project Veritas investigation “deceptive.” The paper defended its reporting by calling it an “unverifiable expression of opinion.”
But the judge said, “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 – that it is opinion.”
Project Veritas said the Times “did not do so, and the court found this trouble.”
The judge concluded that Project Veritas had shown “a substantial basis in law and fact that the defendants [The New York Times] acted with actual malice.”
“We’ve made it past motion to dismiss in defamation lawsuit in Project Veritas v. NYT!!!,” wrote Project Veritas founder James O’Keefe on Twitter. “We’re going to depose them on videotape and we’re going to win.”
Constitutional scholar Jonathan Turley, a professor at George Washington University, said he plans to talk about the case in his law classes.
“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,” he wrote on his website. “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. … That can lead to drawn out litigation over confidentiality and demands for ex parte and in camera reviews by the court.”
He noted that columnist Andrew Sullivan recently 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,'” Turley wrote. “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.”
He pointed out the Times lost a similar case to former GOP vice presidential candidate Sarah Palin last year.
Turley noted the Times’ writers are accused of libeling Project Veritas by stating their opinions as fact in their articles.
One Times headline was “Project Veritas Video Was a ‘Coordinated Disinformation Campaign,’ Researchers Say.” Another was “Conservative News Sites Fuel Voter Fraud Misinformation.” The Times described Project Veritas as “deceptive” and part of a “propaganda feedback loop.”
Turley pointed out the judge’s criticism that the Times was 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,” he said.
The judge found that what the Times now calls “opinion” was “tightly intertwined” with other parts of the writings.
The judge wrote: “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.”
Turley said the case “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.”
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