The NYT Filed A Very Cogent (430 Pager!) Reply Brief In The New York State Appeal, From The Trial Court's Erroneous Prior Restraint Order: Project "Veritas" Matter.

Make no mistake: The New York Times WILL prevail here. [Backgrounder here.] A Tangerine GOP Westchester County elected trial judge gave Veritas a win that was plainly contradicted by at least 75 years of US Supreme Court holdings, on a free press -- the core, of a free democracy. Below is proof that this is getting straightened out, on appeal. We will keep you posted.

Here is the full 430 pages (17 pages is new -- the rest is trial exhibits, and prior case authorities -- so, if you're on a dial up connection, or cell device without wi-fi. . . it is the size of a small movie -- i.e., "data rates may apply" heh) -- and a bit of the meat of it:

. . .The cases cited by Project Veritas in support of this theory, Opp. at 32-33, involved injunctions placing time, place, and manner restrictions on protestors outside of abortion clinics. See Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 371-72 (1997); Madsen v. Women’s Health Ctr., 512 U.S. 753, 763-65 (1994). Unlike the Decision at issue here, the injunctions in Schenck and Madsen did not prevent all speech on a particular subject, and therefore they have no relevance to this case.

Project Veritas does not contend that the specific Decision at issue here is content-neutral, nor could it. The Supreme Court held in Schenck and Madsen that the injunctions were content-neutral because “alternative channels of communication were left open to the protesters, and the injunction was issued not because of the content of the protesters’ expression, but because of their prior unlawful conduct.” Schenck, 519 U.S. at 374 n.6 (internal quotation marks and alterations omitted). Here, The Times is left with no open channels of communication and the restriction expressly is based on the content of The Times’s intended speech -- i.e., reporting on the contents of the Memoranda at issue. See, e.g., Sindi v. El-Moslimany, 896 F.3d 1, 35 (1st Cir. 2018) (finding post-trial injunction barring defamatory statements was a prior restraint and distinguishing Madsen because injunction left available no alternate means of expression and was not content-neutral). . . .

Project Veritas has failed to meet its heavy burden to justify a prior restraint. Br. at 22-27. In opposition, Project Veritas contends that The Times’s “position appears to be that in the case of an alleged prior restraint, no balancing is permissible,” Opp. at 38, but that contention is a strawman. What The Times actually argues is that prior restraints are permissible only in truly “exceptional cases” and must meet the exacting requirements imposed by the First Amendment and the New York Constitution. Br. at 12-17. This is far from the routine “balancing test” that Project Veritas advocates. . . .

Of course, the Supremes have long held that -- if the NYT is violating Veritas's rights, in publishing -- the Times may pay damages. But there are precious few facts in recorded US history (other than national security) that would properly support blanket prior restraint orders. Now you know. Smiling. . . .

नमस्ते