Justice Department’s War with the First Amendment
On a hot summer night in July of 2017, pigs crammed into pens in a Utah industrial farm awoke to the bobbing headlamps of blue-shirted activists cradling piglets as they tiptoed towards the exit. The group, “Animal Equality,” later posted video of the theft, or “rescue,” as they deemed it, in an effort to document and draw attention to the harsh conditions of the farm. More than five years later, on October 8, of this year, a jury acquitted the defendants after hearing arguments that the piglets had little or no commercial value due to their diseased state.
Of course, the facility operators are not concerned about the loss of two piglets. They don’t want the public to know what’s really going inside the facility because the truth could hurt business.
Around the country, state lawmakers, acting on complaints from the meat industry, enacted laws criminalizing the surreptitious or non-consensual taking of video and photographs of the conditions in these facilities. But these piglet thieves were not charged with violating such a law. Just one year before the acquittal, the United States 10th Circuit Court struck down a Kansas law which criminalized taking pictures and video of an animal facility without the consent of the owner. The invalidated law specifically excluded, “consent obtained through deception,” including using a false statement to gain entry onto the property.
In August of 2021, the 10th circuit wrote that the law “punishes entry [into a facility] with the intent to tell the truth on a matter of public concern. Absent a compelling governmental interest . . . the challenged subsections of the Act cannot stand.” The court further noted that the lawmakers specifically designed the law to criminalize videos created with the intent to embarrass the facility owners. It added that the video-recording activities prohibited by the statute “fit comfortably in the speech-creation category recognized in these cases. An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter.” The court added that even if the activists trespassed to create the video or used deception to gain access to the facility, the First Amendment nevertheless protects the recording of the videos.
So, under federal precedent, the First Amendment protects making videos of matters of public interest even if they’re recorded under false pretenses without the consent of the target. That would seem to apply to Project Veritas which repeatedly used false pretenses to record and surface information within the public interest including one of the very first public refutations of the Russian collusion hoax, exposing voter fraud, and evidence of Democrats trying to incite violence at Trump Rallies—the last of which resulted in a successful lawsuit against Project Veritas. Unfortunately for Project Veritas, according to the Justice Department, the rules are different when the videos embarrass their political allies, the Democrats.
Less than three months after the 10th circuit handed down the decision declaring surreptitiously recorded video as “speech” under the First Amendment, thugs from the FBI executed three search warrants against Project Veritas which, like the animal rights activists, had threatened to embarrass powerful people. The difference being only the identity of the powerful people in question. In its brief to the Southern District of New York, the government wrote,
As an initial matter, there is considerable doubt whether the practices of Project Veritas or its employees generally could be entitled to the protection of a qualified journalist privilege. Project Veritas is not engaged in journalism within any traditional or accepted definition. Its ‘reporting’ consists almost entirely of publicizing non-consensual, surreptitious recordings made through unlawful, unethical, and or/dishonest means.
In a footnote, the Justice Department deceptively claimed, “The Government is unaware of any case in which this test has been applied to materials obtained by a search warrant.” Ah, so clever. The 10th circuit case striking down a law criminalizing non-consensual videos did not involve a search warrant. So the Justice Department conveniently did not disclose the recent precedent to the Court in its brief.
Perhaps the Justice Department told itself it need not disclose the recent 10th circuit precedent because the Project Veritas seizure took place in New York, outside of the 10th circuit. Well, no longer. In April of 2022, with little notice or fanfare, the Supreme Court denied certiorari leaving the 10th circuit decision undisturbed and, presumptively, the nationwide interpretation of the First Amendment concerning such matters.
Project Veritas described a grave infringement of its ability to conduct exposé journalism writing,
the government seized Mr. O’Keefe’s cell phones in a 6:00 AM raid on his home. The cell phones contain vast amounts of information protected by the First Amendment, including materials related to on-going news investigations, whistleblower information, and donor information that implicates freedom of speech and association guarantees. The cell phones also contain a vast amount of attorney-client privileged material, both related to the representation of Mr. O’Keefe and Project Veritas in connection with the government’s investigation, and attorney-client privileged materials arising out of many unrelated matters.
The FBI’s apparent justification—the search for Ashley Biden’s diary—is a laughably ridiculous pretext for the agency to disrupt the ongoing First Amendment activities of highly consequential journalistic organization. Not unlike the prosecution in the case of the “stolen” pigs, nobody in the Justice Department really cares about the diary. Obviously, the FBI acted to silence one of the Left’s most effective critics. For almost a year now, the FBI has waged a successful court battle to prevent the public from learning its legal justification for raiding Project Veritas.
The FBI’s campaign to intimidate its political opponents has shattered norms that traditionally protected journalists, political candidates, and attorneys from government retaliation. Federal law enforcement has seized attorney-client communication from Trump attorneys including Michael Cohen, John Eastman, and attorney-client communication from the Presidential Transition Team in the 2016-2017 timeframe. FBI critic Representative Matt Gaetz (R-Fla.) recently emerged from an FBI smear campaign accusing him of sex trafficking. The “investigation” stemmed from a former FBI agent trying to extort $25 million from the Gaetz family.
At the local government level, where future leaders are developed, Attorney General Merrick Garland has used the Justice Department to intimidate parental rights advocates who petition local school boards. And recent lawsuits uncovered shocking coordination between the government and social media to strangle dissenting political views. Similarly, politically disfavored January 6 defendants have had difficulty gaining access to competent legal representation in an environment in which the D.C. defense bar has become totally politicized. And one should not overlook the Justice Department’s disgraceful policy of withholding protection from conservative Supreme Court justices as leftists terrorize them in their own homes. Ever since the despicable assault on Justice Brett Kavanaugh’s good name during the confirmation battle, the Left has been pretty open about its goal of intimidating Supreme Court justices into submitting to the Left’s agenda.
All of this provides context to a common complaint Republican leaders have about “candidate quality” among Republican office seekers. Opposition parties in countries like Iran and Russia also have problems recruiting and retaining effective candidates. Talented leaders have come to understand that security forces might harass them if they pose any threat to the regime in elections. It’s difficult to have free and fair elections when the national police make life miserable for the lawyers, journalists, and candidates of an opposition party.
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