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Opinion | Project Veritas’ strained First Amendment defense in Ashley Biden’s diary case

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In November 2021, FBI agents conducted an early-morning search at the home of Project Veritas founder James O’Keefe as part of an investigation into Ashley Biden’s stolen diary. In the intervening months, O’Keefe and his lawyers have criticized the FBI and the Justice Department for allegedly heavy-handed investigative measures.

The Justice Department on Thursday delivered a response of sorts, and the particulars don’t look favorable to Project Veritas, a group popular among conservatives for its undercover “sting” videos seeking to expose liberal bias in the media, government and tech worlds.

The upshot: If the government’s version of events is true — its claims have not been tested in court — Project Veritas appears to have a shaky case that all of its activities in the diary saga are protected by the First Amendment.

According to Thursday’s announcement, two Florida residents — Aimee Harris and Robert Kurlander — pleaded guilty to a conspiracy to transport stolen property, which included a diary purportedly kept by Ashley Biden. “Harris and Kurlander stole personal property from an immediate family member of a candidate for national political office,” said U.S. Attorney Damian Williams. According to a court document filed by prosecutors in connection with the plea, Harris and Kurlander engaged in extensive discussions with an “organization” — known to be Project Veritas — to sell the material.

Herewith a quick summary, based on the document: In June 2020, Harris moved into a Florida house where Ashley Biden previously resided and where she’d left several items, including the diary, for safekeeping. After discovering the items, Harris enlisted Kurlander to sell them. An attempt to peddle them to the Trump campaign failed, so they turned to Project Veritas, which, according to the government, paid for the pair to travel to New York. At a Manhattan hotel, Harris and Kurlander “provided” the items, which included the diary, a digital camera and a drive containing Biden family photos. Harris explained how she’d obtained the materials and noted that there were additional items belonging to Ashley Biden at the Florida residence.

The next part is critical: An employee of Project Veritas, according to the government’s filing, then “asked” Harris and Kurlander to return to the residence “so that they could obtain and provide” more of Ashley Biden’s belongings — a step that the government says Project Veritas took in part to authenticate the diary. Harris and Kurlander complied with this alleged request, and Project Veritas paid them a total of $40,000.

In a November 2021 filing regarding the FBI search, Project Veritas provided its own account, insisting it “had no involvement with how those two individuals acquired the diary.” Instead, it said, “All of Project Veritas’s knowledge about how R.K and A.H. came to possess the diary came from R.K. and A.H. themselves.” Furthermore, the document asserts, the duo indicated that the material was “abandoned” at the house and that both of them had “reaffirmed that they had come to possess the diary lawfully.” After failing to authenticate the diary “to the degree they required to satisfy their journalistic ethics,” Project Veritas’s lawyers wrote, Project Veritas declined to publish it, but attempted to return it to Ashley Biden, and ultimately handed it over to local law enforcement in Florida.

There is little detail in that filing about the specifics of group’s communications with Harris and Kurlander, and no suggestion that they directed the pair to gather additional items from Ashley Biden.

The disclosures in Thursday’s plea documents bear on the legal arguments that Project Veritas asserted at the time of the O’Keefe raid. Back then, lawyers for the organization maintained that O’Keefe & Co. were practicing journalism — and the feds were overreaching. “What the DOJ has done in this case … they have blown federal law, they’ve blown the Constitution, they’ve blown due process and civil rights. … So this is a scandal of epic proportions,” attorney Harmeet Dhillon told host Tucker Carlson at the time. “Every journalist who isn’t worried and concerned about this should hang up their journalism card — ditto all First Amendment lawyers as well.”

As it turns out, no — this was not a scandal of epic proportions.

As for the group’s claim that the First Amendment shields its activities, that’s a complicated question. As this blog has noted before, the Supreme Court has extended First Amendment protections to the publication of information that had been obtained illegally — provided that the news outlet didn’t participate in those illegal activities. That jurisprudence stems from Bartnicki v. Vopper, in which Pennsylvania radio host Frederick Vopper received a newsworthy recording that related to an union controversy. The recording itself was illegal, but Vopper played no part in its creation. It just landed in his lap.

Project Veritas, however, may not have Vopperian clean hands in this case. The organization’s claim that it had “no involvement” in how the Florida duo acquired the diary does appear to find corroboration in the Justice Department documents. Its alleged request for a second tranche of items, however, is another matter.

According to the Justice Department document, Harris’s explanations in the New York meeting “confirmed” for Kurlander that she had stolen the items in question. Did Project Veritas reach that same conclusion? In its own filing, Project Veritas said that its sources had characterized the items as “abandoned.” From the standpoint of common sense: When two random people seek payment for items as personal as a diary and family photos involving famous people, you’d have to be pretty naive not to suspect it was stolen.

Project Veritas’s alleged push for more items appears to place its conduct in the same ballpark as a Texas radio station reporter who in the mid-1990s received illegally intercepted recordings of cordless phone conversations for use in an investigative story. The reporter gave his source tips on how to ensure the recordings’ authenticity.

Those actions, a federal appeals court ruled in Peavy v. WFAA TV Inc., were enough to expose the radio station to potential civil liability, the First Amendment notwithstanding.

No charges have been filed against Project Veritas, though law enforcement officials said that Kurlander would cooperate with their investigation, according to the New York Times. Lee Levine, a retired media defense attorney who represented the media defendant in Bartnicki before the Supreme Court, says the authorities “can feel pretty good about their chances that the First Amendment will not be an impediment to prosecution. … The combination of saying, ‘I want more stuff and, by the way, I’ll pay you for it’ — that’s a pretty powerful combination from prosecutorial standpoint.”

Paul Calli, an attorney representing Project Veritas in the case, emailed this statement to the Erik Wemple Blog:

Project Veritas and its journalists never participated in or directed any crime. A journalist must be able to engage in ethical, careful corroboration of source material prior to publication. Accepting corroborative material already in possession of the source, is not a crime. The law says as much and the PV journalists adhered to the law. The fact that sources may elect to plead guilty to a crime changes nothing as to journalists.

In an earlier statement, Calli said that a “journalist’s lawful receipt of material later alleged to be stolen is routine, commonplace, and protected by the First Amendment.”

That’s a fine statement, but let’s be clear: There’s nothing journalistically routine or commonplace about this entire affair.

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