The New York Times Has Appealed Judge Charles D. Wood's Order, In NY State. It Will Win.

The idea that a judge who had lived through the Watergate era, as an adult, no less. . . would think that a prior restraint of the free press, in America -- of this sort could even colorably be imposed, largely to avoid embarrassing certain law firms, lawyers and some "political spying operatives" (as a capable federal judge has memorably dubbed them, in other litigation). . . is well, rather surprising. That he did it on Christmas Eve, is all but proof that he knew he'd be bounced, on an appeal. [The papers for immediate relief comprise a is a massive 78 Mb file.]

That appeal has now been filed as a petition for an emergency "show-cause" order, above. The language in it shades toward the majestic, because these cases present issues that directly threaten our free democratic republic's long standing notions of "ordered liberty", thus:

. . .In this application, The Times seeks to modify an extraordinary Decision and Order entered by the Supreme Court, Westchester County, on December 24, 2021 in a defamation action brought by Project Veritas. In the course of its newsgathering about the current FBI investigation into Project Veritas’s role in the theft of a diary belonging to President Biden’s daughter, Times reporters received certain legal memoranda provided by a lawyer to Project Veritas more than three years ago (the “Memoranda”). The Memoranda were obtained by journalists entirely outside the discovery process in this or any other litigation and have nothing to do with the underlying defamation claim in this action. The Decision prevents The Times from possessing or disseminating the contents of the Memoranda based solely on unfounded speculation that The Times improperly acquired them. The Decision both imposes a patently unconstitutional prior restraint on speech and also goes well beyond the scope of the trial court’s discretion to manage discovery under CPLR 3103(c), including because the Memoranda were not obtained through disclosure in this or any action.

A prior restraint is “the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976). Indeed, the Times was last subject to a prior restraint against news reporting more than 50 years ago, in the Pentagon Papers case -- in which the Supreme Court ultimately vindicated the newspaper’s right to possess and publish otherwise secret national security documents. Emergency relief is needed because the constitutional violation is ongoing. . . .

The need for this Court’s intervention is particularly urgent with respect to the portions of the Decision that direct The Times to “immediately” turn over all physical copies of the Memoranda to Project Veritas, to destroy all electronic copies, and to seek to recover copies from other third parties. These actions, once taken, will be impossible to undo even if this Court subsequently grants The Times’s appeal in full, and thus will in the most literal sense irreparably harm The Times’s ability to research and report to the public on Project Veritas. The Times is required to certify its compliance with these provisions of the Decision by no later than January 6, on pain of possible default in the underlying defamation litigation and/or substantial financial penalties. In order to preserve the status quo, an interim stay of those portions of the Decision should be granted during briefing on this application. . . .

This Court has the power pursuant to CPLR 5519(c) to stay enforcement of all or part of an “order appealed from pending an appeal or determination on a motion for permission to appeal.” Such a stay is at the discretion of the Court. See Schwartz v. NYC Hous. Auth., 219 A.D.2d 47, 48 (2d Dep’t 1996); Grisi v. Shainswit, 119 A.D.2d 418, 421 (1st Dep’t 1986). In addition to this statutory authority, courts retain “inherent authority to grant a discretionary stay of the proceeding pending appeal,” including if the party seeking the stay would “suffer hardship if this court does not grant a stay” and the party opposing the stay “will not suffer undue prejudice because of the stay.” Tax Equity Now NY v. City of N.Y., 173 A.D.3d 464, 465 (1st Dep’t 2019). . . .

I look forward to a quick hearing, and a complete win for the Cahill lawyers, and the New York Times. The law here is crystal clear. Judge Wood's order is manifestly against controlling US Supreme Court precedents, that have now withstood the tests of a half century. . . unimpeded. Onward, to a bike ride now. Smiling, ear to ear. . . be excellent to one another, as another strange year (in a series of at least two prior strange ones) draws. . . to a close.

नमस्ते