It used to be called the "New York Times Problem." It asks at what point does the First Amendment stop protecting journalists against the receipt of stolen property, particularly classified documents.

“The Problem” stems originally from the Pentagon Papers, a classified history of the Vietnam War stolen by Daniel Ellsberg and handed over to the Times and later others. The government sought prison time for reporters and editors but failed. What once threatened the Times has now been turned directly against Project Veritas, Ashley Biden's diary, and perhaps Julian Assange as well.

The goal out of the...

It used to be called the “New York Times Problem.” It asks at what point does the First Amendment stop protecting journalists against the receipt of stolen property, particularly classified documents.

“The Problem” stems originally from the Pentagon Papers, a classified history of the Vietnam War stolen by Daniel Ellsberg and handed over to the Times and later others. The government sought prison time for reporters and editors but failed. What once threatened the Times has now been turned directly against Project Veritas, Ashley Biden’s diary, and perhaps Julian Assange as well.

The goal out of the tangled case outlined below is to create two standards for applying the 1A, one for journalists and one for “journalists” ostensibly based on skill and reputation but in reality based on politics. It is a direct challenge to freedom of the press by Biden’s DOJ.

In June 2020, a woman and a man moved into a Delray Beach, Florida, house where Ashley Biden, President Joe Biden’s daughter, previously resided and where she’d left several items, including a diary. The diary mentioned, among other things, “inappropriate” showers taken together by daughter Ashley and Joe (whom Hunter Biden at one point appeared elsewhere to refer to as “Pedo Pete”).

Potentially important stuff, though the woman who found them failed to interest the Trump campaign. She then tried Project Veritas. Veritas paid for the diary holder to meet with their staffers in New York, inspected the diary, and paid for it, only to ultimately decide not to publish it. Veritas instead turned the diary over to law enforcement as unverified (the diary was eventually published by a less-well known site).

Though Veritas never published the diary, the New York Times Problem came into play — does the 1A protect media outlets who receive or even pay for stolen property, i.e., the Pentagon Papers and Ashley Biden’s diary? Obviously taking in stolen goods, say, a diamond watch or purloined car, is a crime. But with snatched or stolen documents of public interest, in steps the First Amendment, which has been held to protect journalists in these cases.

This is also why the New York Times Problem has more recently been called the Julian Assange Problem. Assange never stole any documents himself — that was Chelsea Manning — and only published what he was handed. Any prosecution of Assange would be as a publisher, a clear rub against the 1A and the key issue in any trial that someday might be held.

That’s where the Veritas case should have ended, with the feds doing nothing. Plenty of stolen documents (there is also the open question of whether finding Biden’s diary left behind in an rental house constitutes theft at all) are published all the time by American media outlets, including Trump’s tax returns in the Times and Edward Snowden’s bombastic NSA source materials in the Washington Post. It is an essential part of a free press and protected by the 1A.

But the DOJ did not stop with Veritas, which, after all, did not even publish any of the allegedly stolen documents. The FBI instead conducted a predawn search in November 2021 against Project Veritas founder James O’Keefe’s home and similar raids on two associates to take possession of their cell phones and journalistic notes. The raid warrants cited concerns over the stolen Biden diary.

In response, University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, said, “I’m not a big fan of Project Veritas, but this is just over the top. I hope they [the FBI] get a serious reprimand from the court because I think this is just wrong.”

O’Keefe’s lawyers complained that the raid had unfairly denied him the legal protections afforded to journalists. “The Department of Justice’s use of a search warrant to seize a reporter’s notes and work product violates decades of established Supreme Court precedent,” O’Keefe’s lawyer wrote. The search also appears to violate the Privacy Protection Act, prohibiting searches and seizures of “any work product materials possessed by a person [person is undefined which gets around the issue of who is a ‘journalist’] reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Court papers provided to the Project Veritas founder when his phones were seized indicate that his devices were taken as part of an investigation that prosecutors are conducting into potential conspiracy to traffic stolen goods across state lines — the Biden diary. This should send chills through First Amendment advocates because the Supreme Court ruled in 2001 that media outlets cannot be held liable for publishing information that may have been obtained illegally, as long as they themselves obtained the material legally.

The Supreme Court case in question is 2001’s Bartnicki v. Vopper. A person intercepted and recorded a cell phone conversation between a union negotiator and the union president. Vopper, a radio commentator, played a tape of the intercepted conversation on his public affairs talk show. Petitioners filed a damages suit under wiretapping laws, alleging their conversation had been surreptitiously intercepted by an unknown person and the radio station repeatedly published the conversation even though they had reason to know that it had been illegally intercepted.

The court ultimately held that the First Amendment protected the disclosures and the radio station did not violate the law. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” concluded Justice John Paul Stevens in Bartnicki v. Vopper. So why not the same with Project Veritas?

Loose in the Veritas case is a charging Department of Justice, which said the two people who tried to sell Veritas the diary were guilty of moving stolen property across state lines. More importantly the DOJ a) got the two to plead guilty to moving stolen property and b) contended Veritas paid them $40,000 and told them to go back into the house and look for more Ashley Biden materials (Veritas says they did not do this).

The latter point is key, because the protections of Bartnicki v. Vopper require the media to be passive. It cannot help “steal” things to later publish. FYI, the latter could form the bulk of any prosecution against Julian Assange, i.e., the claim that he assisted Chelsea Manning by providing technical advice in stealing (“procurement”) all the classified documents she did. Such assistance, as alleged in the Veritas case, could eliminate the 1A protections (see Peavy v. WFAA-TV).

What does it all mean? Project Veritas is being punished for practicing journalism and its 1A rights are being violated. Veritas met with sources who had obtained Ashley Biden’s diary. It was irrelevant whether they did so legally. Veritas’ journalists’ homes were searched, its sources charged with an interstate federal crime, and Veritas itself is being set up for procuring “stolen” material.

If the DOJ is successful in its efforts, this would see a double standard emerge for the New York Times Problem. One liberal standard would allow major new outlets the freedom to publish stolen documents while another more conservative standard would restrict that type of publishing when the outlet is more amateur and less well known. Like Veritas.