In his recent and excellent book, “The Last King of America,” award-winning author Andrew Roberts offers up a revisionist view of King George III, whose reign ran from 1760 to 1811 and included the American Revolution and England’s loss of its 13 North American colonies.
Roberts posits that George III was not the arch-villain Jefferson conjured up—for rhetorical and propaganda purposes, according to Roberts—in the Declaration of Independence. To the contrary, George III was cognizant of the limitations that the British Constitution imposed on the monarchy. Roberts contends, in fact, that the American Revolution—inspired purportedly by George III’s tyrannical tendencies—succeeded in large measure because of the king’s refusal to resort to tyrannical measures to put down the rebellion.
Roberts offers many examples, for instance, where British colonial authorities permitted inflammatory, arguably seditious, and (from England’s perspective) treasonous speech to be published without repercussions. Thomas Paine’s “Common Sense,” for example, included all sorts of nasty accusations directed to George III. Yet Paine was not arrested, shackled or muzzled for publishing it. Also, Washington, Adams, Hancock, Patrick Henry, and their cohorts did, after all, quite publicly convene multiple sessions of a “Continental Congress” for which there was no basis under English law. Colonial authorities did not send gendarmes to break up those meetings. George III’s officials permitted those then-British subjects, and soon-to-be revolutionaries, to assemble and speak their minds.
Interesting perspective, but why bring it up here? Roberts’ book came to mind because, in the recent and controversial decision in Project Veritas v. New York Times, the New York Supreme Court in West Chester County invoked George III during the course of the court’s attempt to strike a balance between competing interests: freedom of speech and freedom of the press, on the one hand, and the “sanctity” of the attorney-client privilege on the other.
Project Veritas sued the New York Times for defamation based on articles the newspaper published contending that Project Veritas had issued a deceptive video exposé about alleged illegal voting practices. During the pendency of the action, the Times came into possession of legal memoranda prepared by Project Veritas’ outside counsel that included legal advice to Project Veritas about requirements under the U.S. Espionage Act and other legal obligations. The Times did not obtain the memoranda through discovery in the pending action; instead, the paper claimed to have acquired the memoranda through “newsgathering” efforts. The Times then published articles reporting on the content of and the legal advice contained in the memoranda, and the paper, on its website, even made copies of the memos themselves available to its readers.
With its attorney’s confidential legal advice available for the world to read, Project Veritas sought relief from the New York trial court handling the underlying defamation action. Project Veritas demanded the return of the legal memoranda and requested the issuance of an injunction to prohibit the Times from publishing any more stories about those memos or their contents.
The Times opposed the request, countering that: the paper did not obtain the memos through the court’s discovery process; the memos, while addressing issues tangentially related to the underlying action, predated by years both the underlying action and the events specifically at issue in that action; and, most importantly, Project Veritas’s request, if granted, would constitute a “prior restraint” of speech in violation of the constitutional rights of freedom of speech and freedom of the press.
On Dec. 23, the court granted Project Veritas’s requests, thereby prohibiting The New York Times from publishing any further articles about the memos or the advice contained in them. The court recognized that the newspaper had First Amendment rights, but the court also stressed the importance of the attorney-client privilege—a tenet developed to encourage candid and frank communications between lawyers and clients.
The court acknowledged that prior restraints on speech are rarely proper and that a party seeking such extraordinary relief bears a heavy burden. The court concluded that Project Veritas met that burden and that, under the circumstances, the vindication of the attorney-client privilege took precedence over the right of the country’s most prominent newspaper to publish news it may deem fit to print.
In the course of its opinion, the court offered its conclusion that Project Veritas’ attorney’s memos were not matters of public interest because, according to the court, the public has no legitimate interest in knowing what a lawyer says to his client in a privileged communication.
That is a fairly remarkable conclusion. John Dean was White House counsel under Richard Nixon. Under the Project Veritas court’s rationale, if, hypothetically, Mark Felt—“Deep Throat”— had obtained privileged memos authored by Dean about the legality or illegality of sending the “plumbers” to the Watergate Hotel and then turned those memos over to Woodward and Bernstein, those hypothetical memos likewise would not have been matters of public concern and could have been blocked from publication in order to protect the attorney-client privilege.
The attorney-client privilege is, without doubt, long-established and important. It is not, however, a constitutional right. See Fisher v. United States, 425 U.S. 391 (1976). While it has been elsewhere described—maybe a little hyperbolically—as “sacred,” the attorney-client privilege is, in reality, an evidentiary rule, akin to the work-product doctrine or the various hearsay rules. See e.g., Magida v. Continental Can, 12 F.R.D. 74, 76 (S.D.N.Y. 1951) (“There is nothing sacrosanct about [the attorney-client privilege]. It is a product of legislation, without constitutional guarantee, and it is far from inviolate.”)
The Project Veritas decision is difficult to reconcile with the United States Supreme Court’s 2009 decision in Mohawk Industries v. Carpenter, 558 U.S. 100. There, the Supreme Court resolved a circuit split on the issue of the immediate appealability of a district court decision compelling the disclosure of a communication purportedly protected by the attorney-client privilege. The Mohawk court held that an interlocutory denial of the protection of the privilege was not appealable as of right. While giving a relatively brief nod toward the importance of the privilege, the court held that the privilege was not so important as to warrant an immediate appeal in most instances. Instead, review and correction of a district court error on a privilege issue could await the conclusion of the entire case. Thus, in Mohawk, the U.S. Supreme Court did not find the attorney-client privilege compelling enough to take precedence over the interests of judicial administrative convenience implicated in the final judgment rule. The Project Veritas court, by contrast, saw fit to allow an evidentiary rule—the attorney-client privilege—to win out over the fundamental constitutional rights of freedom of speech and freedom of the press.
The Project Veritas court, in its opinion, claimed that King George III “showed little regard for freedom of speech and the press (and even less so in the American Colonies).” The court provided no citation in support of that proposition, and, based on Andrew Roberts’ book, that particular characterization of George III may not withstand academic scrutiny. Likewise, the Project Veritas court’s decision to give the attorney-client privilege a position of prominence over the First Amendment may not survive appellate review.
Kevin P. Allen is the co-managing partner of Duane Morris’s Pittsburgh office. He is also the author of “The Attorney-Client Privilege and the Work-Product Doctrine in Pennsylvania,” now in its sixth edition.
Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.