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Milo Yiannopoulos Says His Source A Cannot Be Named So Posits A Source B to SDNY Judge

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, Oct 23 – Milo Yiannopoulos has been subpoenaed for information for a lawsuit about the United the Right event, Sines v. Kessler, et al., 18-cv-72 (W.D. Va.)

On July 29 U.S. District Court for the Southern District of New York Judge Katherine Polk Failla held a motion to compel hearing, with Yiannopoulos by video.

Inner City Press live tweeted it, here and some below.  We are publishing the M at emails saying "I am intensely sympathetic to the aims of your lawsuit as they relate to Richard Spencer... Stop lying to the court," on Patreon here.

 Now the second half of October Milo Yiannopolous has written to Judge Failla: "Dear Judge Failla: Re: Sines et al. v. Yiannopoulos I write to clarify the nature of my sourcing on Richard Spencer, and to provide additional, definitive detail about the origins of the material I have been publishing on YouTube over the last couple of years. I also write today with an update on my attempts to source the recordings Plaintiffs seek. It is a regrettably short update: I have been unsuccessful. It is commonplace for journalists to be vague, even to the point of inconsistency, about the nature and number of our sources. We must take every conceivable effort not to inadvertently identify those to whom we have given solemn assurances. But I have read your Order carefully, and I accept that you are in need of a concrete response. I am content to provide it. Source A Source A is the person from whom I received every video I published on YouTube and supplied to the Plaintiffs, along with basic descriptions of what the videos show. I have been in semi-regular contact with this person, who initially indicated that they would be willing to co-operate with Plaintiffs, but then subsequently: (a) insisted that I not disclose their name, even under seal, and; (b) denied that he had been the one to play me the recordings Plaintiffs are seeking. That situation has not changed since you last heard from me. While his version of events does not match my recollection, I have little choice but to assume I could be wrong, and that therefore there exists a: Source B Source B would be the person who played me the tapes. I have a dim recollection of various individuals who were at the party on the evening in question, but I would only be speculating recklessly about which, if any, of them it could have been.

 Thank you for your patience with me in these proceedings thus far, and for allowing me to file my submissions in this manner. If I can be of any further assistance in this case, please let me know. Respectfully submitted /s/ Milo Yiannopoulos"

In mid-October Judge Failla issued a ruling including that "3. The Federal Journalist’s Privilege Applies The Second Circuit has articulated a qualified privilege for information gathered in a journalistic investigation. See, e.g., Gonzales, 194 F.3d at 29; In re Petroleum Prods. Antitrust Litig., 680 F.2d at 7-8; Baker, 470 F.2d at 778. In order to establish that the journalist’s privilege applies in the Second Circuit, Respondent must establish that (i) he was acting in “the role of the independent press,” (ii) “‘at the time the gathering of information commences.’” Chevron Corp., 629 F.3d at 307 (quoting von Bulow, 811 F.2d at 145). “The primary relationship between the one seeking to invoke the privilege and his sources must have as its basis the intent to disseminate the information to the public garnered from that relationship.” von Bulow, 811 F.3d at 145. Movants argue that Respondent cannot assert the journalist’s privilege because he was gathering information and cultivating his source in order to pursue a personal feud with Richard Spencer, and was thus not acting in the role of an independent journalist. (Mov. Br. 9). Respondent replies that at the time he “acquired the identity of” his source, he was employed as a professional journalist at Breitbart, and, further, that he “learn[ed] the identity of the source in the course of gathering or obtaining news” — not in pursuing a grudge against Spencer. (Resp. Opp. 3-4 (internal quotation marks omitted)). The factual record is both thin and slightly muddled. The parties focus their arguments on Respondent’s intent at the time he obtained his confidential source, as well as his role while attending an “afterparty” at which the source allegedly showed relevant recordings to Respondent. (See Mov. Br. 6-8, 9; Resp. Opp. 3-4; Mov. Reply 4-6). Respondent states that “when [he] acquired the identity of the source and listened to materials and became aware of various facts in the course of reporting, [he] was at the same time a senior salaried professional reporter at” Breitbart. (Resp. Opp. 4). Breitbart is a controversial website with an overt bias, “[b]ut the touchstone is not ... whether the journalistic enterprise was ‘unbiased’; by that standard, few, if any, daily newspapers could assert the privilege. Rather, the test is whether the enterprise intended to express its views publicly, or merely to engage in private lobbying.” Schiller, 245 F.R.D. at 119. Breitbart does not primarily engage in  private lobbying, regardless of its editorial vision or the merits of the content that it publishes. Cf. Chevron Corp., 629 F.3d at 308 (declining to find that a reporter commissioned “to serve the objectives of others who have a stake in the subject of the report” is acting in the role of “an independent press”). Respondent asserts he was writing about white supremacy “at the time in question,” making conversations with white nationalists “directly relevant to [his] daily work[.]” (Resp. Opp. 3). Thus, to the extent Respondent acquired his source and/or learned about the relevant documents while employed by Breitbart, he has sufficiently invoked the journalist’s privilege, even if he later developed a personal grudge against Spencer. See id. at 307 (distinguishing between “proper invocation of the privilege, where the purpose to disseminate the information motivated the gathering of the information,” and “improper invocation, where the information was gathered for other reasons and the intent to publish arose only later”). Movants further assert that the afterparty at which Respondent was purportedly shown the relevant files happened after Respondent resigned from Breitbart in February 2017. (Mov. Reply 5-6; see also Mov. Br. 7 n.6 (citing news article about Respondent’s resignation from Breitbart in February 2017)).3 The timeline is not entirely clear, so the Court next addresses the possibility that Respondent cultivated his source and/or obtained relevant information after leaving Breitbart. Respondent asserts that he was not motivated by a personal grudge at the time he cultivated his source, regardless of the timing, and further argues that he attended the afterparty “for journalistic purposes.” (Resp. Opp. 3-4). This assertion is supported by the fact that Respondent has been publishing content about white supremacist ideology since he left Breitbart, even if not for a formal media organization and even if published in an unorthodox style. (See, e.g., Bloch Decl., Ex. 5, 6, 10, 16-18). Movants ask the Court to discredit Respondent’s assertion that he attended the afterparty with a journalistic intent because Respondent claims to have consumed significant amounts of alcohol at the party. (Mov. Reply 5-6). The Court notes that the consumption of alcohol at a party does not vitiate journalistic intent. Journalists may wish to attend a party in order to gather information, or to meet and cultivate potential sources, any of which goals may be furthered by the consumption of alcohol. Even if the Court discredits Respondent’s representations as to timing, the Court is not convinced that Respondent was motivated only out of a personal grudge against Spencer. Spencer is himself a newsworthy subject, and publishing information about him, even if tinged with personal dislike, can still be motivated by an interest to “disseminate information to the public,” Chevron Corp., 629 F.3d at 307, and to promote “debate over controversial matters,” von Bulow, 811 F.2d at 144. As noted above, after leaving Breitbart, Respondent was still engaged in disseminating information about the far right  to the public, through his blog, social media, YouTube, and elsewhere. (See, e.g., Bloch Decl., Ex. 5, 6, 10, 16-18). Respondent’s style of disseminating information may be confrontational and biased, but it is not wholly without journalistic content, and protecting even Respondent’s muckraking style protects the “public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.” Baker, 470 F.2d at 782."

Judge Failla concludes that, "  Movants’ motion to compel is DENIED WITHOUT PREJUDICE to its renewal on a more detailed record, and Respondent’s motion to quash is DENIED as moot. Within one week from the date of this Order, Respondent is ORDERED to submit in writing the total number of confidential sources that he seeks to protect from disclosure by his invocation of the journalist’s privilege. Within two weeks of receiving Respondent’s submission, Movants are ORDERED to file a supplemental submission on the issue of whether the privilege can and should be overcome, and Respondent is ORDERED to respond to this submission within two weeks of receiving Movants’ submission. Additionally, the Clerk of Court is directed to unseal the filings at docket entries 17 and 20, except that the exhibits to the filing at docket entry 17 shall remain sealed."

Inner City Press will continue to cover this case, as many others in the SDNY. This one began this way:

Milo Yiannopoulos is saying he'd like to see Richard Spencer in jail but doesn't like "the funders of this lawsuit, the ADL."

Milo Yiannopoulos: I just publish stuff as I get it. Spencer spent $10,000 to doctor a video to make it appear I was singing to white nationalists. I'm happy to help them with this lawsuit, I just don't have anything. I'm happy to comply with any court order.

 Judge Failla: I'll swear you in. Milo Y: I'm a Christian. 

Judge Failla: ... so help you God. Milo Y: I do. I was served at the Roger Stone trial. Judge Failla: The subpoena was from November 2019. And you met plaintiffs' counsel in Dec?

Milo Y: That sound right.

Judge Failla: You published the Spencer video within 48 hours of receipt?

Milo Y: Yes. And I wrote about it. I heard from a reporter at the Washington Post that he had heard similar things privately from Spencer as well. So I asked about that in my piece.

 Milo Y: The FBI called me on my cell phone and asked to meet.

Judge Failla: Did you meet?

Milo Y: Yes.

Judge Failla: Can you talk about it?

Milo Y: I prefer not to. 

Judge Failla: Had you made a representation to movant's counsel that you had no such materials?

Milo Y: Let me look it up. Judge Failla: I believe it was April 6 of this year. Milo Y: That the video dropped? Judge Failla: Yes.

 Milo Y: I met with them once in their offices in the Empire State Building. I think it's in my online calendar. Give me a moment. 11 am, Wednesday Dec 18. Judge Failla: That's what my law clerk says.

 And we're back: Movant's counsel Benjamin White says that Milo Y recorded a video about the subpoena, flashed at camera an orange hard drive calling it "the vault," saying it was at his home in New York. It is responsive to our subpoena. Was he lying then or now?

 White: Mr Yiannopoulos says he was "messing around." But it has hurt our case, and wasted our time. He has proposed today one possible solution - allowing an inspection of the devices. Let's start with the vault.

 Judge Failla: It may just be that he was playing you. But it does not mean that he has responsive materials. What evidence of it do you have, that the representations he is making to me today are false?

Answer: The specificity of his descriptions of what he had

Movants' lawyer: We are asking your Honor to test the accuracy of what Mr. Yiannolpoulos is saying. Appoint a master to look through the materials. He's offered his cell phone and his email addresses. Let's search them. 

More here.

The case is Sines, et al. v. Yiannopoulos, 20-mc-241 (Failla).


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