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Milo Yiannopoulos Said His Source A Cannot Be Named So Bid To Deny Journalist Privilege

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

SDNY COURTHOUSE, Nov 5 – 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.

 In the second half of October Milo Yiannopolous wrote to Judge Failla: "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... Respectfully submitted /s/ Milo Yiannopoulos."

Now on November 5 the plaintiffs have shot back, full letter on Patreon here: "Movants questioned Defendant Elliott Kline at length on the subject of Unite the Right planning meetings—and whether they were recorded—at both of his two depositions.1  Mr. Kline was one of the central figures in the planning of Unite the Right and he attended nearly all planning sessions for it. See supra note 1. In fact, Mr. Kline drafted what was referred to as the central “planning document” for the event. Bloch Decl. Ex. 6 at 106, 120-23, 372-79. And indeed, Mr. Kline was the primary individual Respondent identified to Movants’ counsel as being present at one of the Unite the Right-related events depicted in one of the audio recordings that was supposedly in Respondent’s possession. See Dkt. No. 1-2 ¶ 14c.  Despite Mr. Kline’s centrality to Unite the Right planning sessions, however, at neither of his depositions did he describe recordings of planning sessions that match the description of what Respondent has described. Further, Mr. Kline made plain that he took no notes at any of those meetings, and did not have any documents, including any e-mails or text messages, regarding those meetings. Bloch Decl. Ex. 6 at 196. Mr. Kline also made plain that he did not “make any kind of recording” of a meeting with Richard Spencer to plan Unite the Right. Id. at 198. Mr. Kline also testified that he never appeared in a video that someone else had recorded regarding planning of Unite the Right. See id. at 187. Finally, Mr. Kline confirmed that although there were weekly audio meetings on the on-line chat forum, Discord, that he did not record those meetings. Id. at 378.2  For the avoidance of doubt, despite the topic of in-person planning meetings arising at depositions of witnesses in this case, no witness testified to their awareness of the type of recordings that Respondent has described in this action. See Bloch Decl. ¶ 4. * * * Throughout what could be described as a tumultuous litigation, Movants have remained steadfastly focused on seeking evidence of what occurred at the planning meetings for the Unite the Right event. Despite these best efforts, however, they have simply not been able to uncover the evidence that Respondent has described to them. Given that, they have also of course been unable to identify any supposed source(s) for this material. In light of Movants’ efforts, this case is dissimilar to the authorities cited by the Court which rejected challenges to the invocation of the journalist’s privilege. See Dkt. No. 24 at 17– 18. In In re Petroleum Prod. Antitrust Litig., 680 F.2d 5, 8-9 (2d Cir. 1982), the court noted that although there had been significant deposition testimony taken in the action, “there [was] no indication that anyone was asked [at deposition] the simple question [at issue].” As shown above, that is not the case here—the subject of Unite the Right planning meetings came up regularly at depositions. Similarly, in In re Pishevar, 439 F. Supp. 3d 290, 307 (S.D.N.Y. 2020), it was “far from clear what other non-press sources have [the sought-after] information.” Here, for the reasons addressed above, Movants simply have no reason to believe that there is any other available nonpress source (assuming, arguendo, that Respondent is a member of the “press”) for the information that Respondent has described.... Movants have engaged a multi-prong and sustained effort to acquire the identities of individuals who attended planning meetings and to acquire recordings of planning meetings in any form. In sum, the only ever indication that there exist recordings of in-person planning meetings for Unite the Right came from a single source: Respondent. For these reasons, and those stated in Movants’ earlier submissions, Movants respectfully request that the Court reject Respondent’s invocation of the journalist’s privilege."

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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