Prior Restraint and Project Veritas

On today’s podcast, David and Sarah open with the puzzling case of Project Veritas and ...

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On today’s podcast, David and Sarah open with the puzzling case of Project Veritas and James O’Keefe. Why is a New York appeals court appearing to let stand a prior restraint on the press? They then answer a fascinating reader mail question before wrapping up with an extended discussion of self-defense in the context of an incredibly troubling Texas shooting that was caught on tape.

Show Notes:

–Near v. Minnesota

–New York Times Co. v. United States

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  1. Ben Moser

    Idunno man as an agnostic I gotta say i find it hilarious that the same jurisprudence that demands damn near close to “every sperm is sacred” also demands that “well if you just pull out your gun first you will nearly always have a valid self defense claim.”

    I get that the art of lawyering is scrupulously ignoring the forest for the art of making a buck off the existence of a tree but man o man it’s super hard to take seriously the idea that the same lawyers will expound on the “seamless garment of life” and “well he went for my gun after I shot so I get to kill him…”

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  2. AHenry

    Why is it acceptable to a newspaper or a journalist to receive stolen goods and no one else?

    If I stole a watch and sold it to a pawn shop the store, if they knew it was stolen, would be responsible for receiving stolen goods.

    Now, what if this were a smart watch that gave some crucial details about a person's location at a specific time and I was giving it to my local paper as evidence exposing some form of corruption.

    But the Pentagon papers (or Biden's daughter's diary) is information and not a physical good like a watch. Information, though, can have even greater value. What if the Pentagon Papers had contained proprietary data from defense contractor "A" and it was given to defense contractor "B"? We live in an age of strict data residency rules for certain information so just putting the wrong thing on the wrong hard drive in the wrong location can be considered a crime.

    Does "freedom of the press" really mean that journalists do not have to obey any of the laws which apply to the rest of us? And if that's the case what if defense contractor "B" from above steals the Pentagon Papers not to gain a leg up but to make them public but accrues a fringe benefit from the information contained therein?

    Thanks

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  3. Avatar photo
    Jean-Christophe Jouffrey

    Dear Sarah Isgur,

    I am baffled by your discussion of "life and limb" in the 5th amendment. The 8th amendment forbids indeed cruel and unusual punishment, but what is cruel and unusual is dependent of the "original" circumstantial meaning .

    Why don't you take "life and limb" literally, instead of even discussing possible "alliteration"?

    Indeed all the words are meaningful and need to be first interpreted in the original context.

    These amendments are meant to protect US citizens, in particular from some of the laws of the States.

    So the question which an originalist and literalist interpretation should ask, instead of dismissing the actual cutting of limb as antiquated, would be if there were such State laws?

    From a reading of Jefferson's writings, many years ago, I did remember (I went to fetch back the source document) that indeed there were such laws, as exemplified in a report written between 1776 and 1779 regarding the reform of some laws of Virginia.

    1) First see the note at the bottom of this page https://archive.org/details/writingsthomasj01fordgoog/page/n248/mode/1up

    "I have strictly observed the scale of punishments settled by the Committee, without being entirely satisfied with it. The Lex Talionis, although a restitution of the Common law, to the simplicity of which we have generally found it so advantageous to return, will be revolting to the humanized feelings of modern times. An eye for an eye, and a hand for a hand, will exhibit spectacles in execution whose moral effect would be questionable ; and even the membrum pro membro of Bracton, or the punishment of the offending member, although long authorized by our law, for the same offence in a slave has, you know, been not long since repealed in conformity with public sentiment. This needs reconsideration."

    2) Then in the bill itself, here is section II, with the accompanying footnote number 2
    https://archive.org/details/writingsthomasj01fordgoog/page/n249/mode/1up

    Please note the "life and limb", and the exception.

    "Sect. II. Be it enacted by the General Assembly, that no crime shall be henceforth punished by the deprivation of life or limb,2 except those herein after ordained to be so punished."

    "* This takes away the punishment of cutting off the hand of a person striking another, or drawing his sword in one of the superior courts of justice. Stamf. P. C. 38. 33. H. 8. c. 12. In an earlier stage of the Common law, it was death. Gif hwa gefeohte on Cyninges huse sy he scyldig ealles his yrfes, and sy on Cyninges dome hwaetber he lif age de nage ; si quis in regis domo pugnet, per-dat omnem suam haereditatem, et in regis sit arbitrio, possideat vitam an non possideat. LI. Inae. 6. Gif hwa on Cyninges healle gefeohte, oththe his waepne gebrede, and hine mon gefo, sy thaet on Cyninges dome swa death, swa lif, swa he him forgyfan wille: si quis in aula regia pugnet, vel anna sua extrahat et capiatur, sit in regis arbitrio tarn mors quam vita, sicut ei condonare voluerit. LI. Alfr. 7, Gif hwa on Cyninges hired e gefeohte tholige thaet lifes, buton se Cyning him gearian wille : si quis in regia dimicat, perdat vitam, nisi rex hoc illi condonare velit. LI. Cnuti. 56. 4. Bl. 125.— T. J."

    3) And here is the 1st notable exception regarding the amputation of limb, found in section XIV (I do not copy the numerous footnotes pertaining to that section. It is important to note that this was intended to become actual law in Virginia in 1779.
    https://archive.org/details/writingsthomasj01fordgoog/page/n254/mode/1up

    "Sect. XIV. Whosoever shall be guilty of rape, [polygamy] or sodomy with man or woman, shall be punished; if a man, by castration, if a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least."

    4) and the second exception in section XV. https://archive.org/details/writingsthomasj01fordgoog/page/n256/mode/1up

    "Sect. XV. Whosoever on purpose/ shall disfigure another, by cutting out or disabling the tongue, slitting or cutting off a nose, lip, or ear, branding, or otherwise, shall be maimed, or disfigured in like sort; or if that cannot be, for want of the same part, then as nearly as may be, in some other part of at least equal value and estimation, in the opinion of a jury, and moreover, shall forfeit one half of his lands and goods to the sufferer."

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    Andrew

    Hello Sarah and David! Can you take a look at and explain the Injunction against the vaccine mandate for federal contractors?

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      Andrew

      Here is the order. I was trying to make heads/tails of it. https://www.affirmativeactionlawadvisor.com/wp-content/uploads/sites/858/2021/11/1444000-1444487-https-ecf-kyed-uscourts-gov-doc1-08115877138.pdf

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  5. Joshua Foster

    Can you discuss what the typical process is for the Supreme Court? Will they have more oral arguments? Do they just discuss and write and opinion?

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      Sarah Isgur vertical-nib Author

      We’ll do some process convo tomorrow in our Dobbs discussion!

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      1. Joshua Foster

        Thats what I was hoping!

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    C. Ross

    I'm concerned about the recent turn against open carry by some on the right, as I'm having trouble envisioning a limiting principle that prevents these restrictions on open carry from turning into a ban on the use of long guns. If I can't walk out of my house with a long gun, on my own property, where am I supposed to be able to use it? Am I limited to licensed ranges and regulated game lands? Are ranchers, or just those of us who live in a more rural area, not going to be able to use a .22 to remove pests and protect livestock?

    Yes, some terrible things have happened when people have open carried firearms, but I seem to recall David saying "Bad facts make bad law". Let's be careful to not limit liberties to prevent tragedies that can't be prevented.

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  7. Michael.Mcchesney

    This is pure speculation, but I think the important difference between the NY Times in the Veritas case and the NY Times in New York Times Co. v. United States (1971) is that in the Veritas case the NY Times was a party prior to any prior restraint issues arising. In regular criminal and civil cases Judges are allowed to issue gag orders. Let's say that a party in a civil case had begun releasing attorney-client privileged documents belonging to the opposing party in hopes that the negative press coverage would benefit them when it came time to select a jury. A judge would be fully justified in ordering that party to not release any further privileged documents. In this case, the party that might benefit from negative coverage is a newspaper. Should the fact that they are a newspaper allow them to get away with something no non press organization would be allowed to get away with? This scenario would explain why the trial judge issued the order and also why the appeals court didn't immediately toss it out. It may be that the answer is that a newspaper is allowed to get away with it, because pryor restraints are almost never justified. But the appeals court might want to take it's time in deciding that.

    Anyway, as I said just speculation. But I think it almost has to be something like that.

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      Treasurer

      It seems you’ve got more critical thinking skills than all major media outlets combined. Maybe they’d like to hire someone like you who could have seen the appellate decision coming instead of having nothing but disbelief for their readers to chew on.

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      1. Michael.Mcchesney

        Thanks. What some of the professional journalists should have done is ask one of the law professors they frequently ask to comment on stories "Why might a court have issued this order given the huge presumption against prior restraint?" But I am hardly an expert. I practiced law for a few years 20 years ago before teaching high school for a few more. Than I was rear ended at a red light by a garbage truck and now I'm retired. But I do ask questions. One of my law professors handed out end of semester joke awards. As to me he said "The extended hypothetical 'But If' award must go to Mr. McChesney in the back row." I had no professor to ask about this question, so I posted my own answer to it here. Maybe my brain hasn't completely turned to mush yet. But give it time.

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  8. Pohl

    Nice little discussion of self-defense law. I do disagree with David’s latest notions about open carry, but it’s a bad idea for most people, most of the time. You can’t fix stupid, though, and I don’t see the need to regulate it in my neck of the woods at least.

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  9. John Cuyle

    I don't see it mentioned elsewhere in the comments, but a potentially relevant tidbit from the Volokh post linked in the show notes: "But in nearly all states, you can't generally use deadly force merely to defend your property. (Texas appears to be an exception, allowing use of deadly force when there's no other way to protect or recapture property even in situations involving simple theft or criminal mischief, though only at night, Tex. Penal Code § 9.42; see, e.g., McFadden v. State (Tex. Ct. App. 2018).)"

    This was in Texas, but during the day, so it probably doesn't apply. I don't think this was a legitimate instance of self defense, though. Reasonable people can disagree on this, but the shooter's behavior (warning shot, continuing the disagreement, failing to take up a safer and tactically superior position within the house rather than coming back outside) all suggest to me that he was not in reasonable fear for his life, and from what I understand reasonable fear of death or grievous bodily harm is a required element of self defense. Does that meet reasonable doubt? No idea.

    I'll also just chime in here with my opinion (legally this will vary widely by state) that carrying a long arm in your hands is qualitatively different from wearing a slung rifle. A slung rifle is equivalent to a holstered pistol. A rifle in hand is equivalent to an unholstered pistol. In my state (WA, open carry, no permit required for open carry, permit required for concealed carry) unholstering a pistol is "unlawful carry" (what David would refer to as brandishing, that word does not appear in Washington state law, though.) Rittenhouse was wearing a rifle on a (very poor) sling (single point, requires manual control of the long arm to not swing around and impact you in places you really don't want an eight pound chunk of metal impacting you.) But a sling. In the Texas incident the rifle was not slung, it was in hand. I would describe the Texas shooter (also named Kyle, IIRC) as brandishing but not describe Kyle as brandishing. But that's based on the logical extension of WA's unlawful carry principles to long arms. WI and TX have their own rules, and those rules are relevant. I am strongly opposed to changing WA's open carry law (including the changes enacted last year.) I think WA strikes a reasonable balance which maximizes both individual liberty in a way that provides reasonable clarity of intent.

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    Ben Connelly

    We got you 2000 reviews on Apple Podcasts. Is this where you buy all AO listeners pizza?

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      Ben Connelly

      Also thanks for addressing the Rittenhouse case again. I wish you’d gone a little longer but thought Sarah especially did a good job of clearing up a bit of my concern about her comments last week. I see where you’re coming from a bit better now.

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