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Journalists lack constitutional right to embed with military

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Journalists lack constitutional right to embed with military

  • In a case brought by Hustler magazine publisher Larry Flynt, a federal appeals court panel in Washington, D.C., held that the media do not have a First Amendment right of access to travel with military troops into battle.

Feb. 5, 2004 — A reporter does not have a constitutional right to be embedded with U.S. troops during combat, a federal appellate court ruled Tuesday in response to a lawsuit brought by Hustler magazine publisher Larry Flynt.

A three-judge panel of the U.S. Court of Appeals in Washington, D.C., held that journalists do not have a First Amendment right to travel with military units into combat rather than simply covering the war by their own means.

The ruling is believed to be the first of its kind by a federal appeals court. Several lower courts have already ruled that journalists do not have a right of access to the military.

“I think Flynt’s lawsuit was unrealistic,” said Eugene Fidell, president of the National Institute of Military Justice, an organization of lawyers and law professors concerned with the administration of justice within the military.

“The panel made it clear that the case would have been different if Hustler had been treated differently from other news outlets,” he said. “It’s a signal to the Pentagon, if one was needed, that it cannot play favorites.”

Flynt sued the Defense Department in November 2001 after Pentagon officials denied two requests to allow Hustler correspondents to accompany the first wave of ground troops into Afghanistan.

The Pentagon said access was not immediately possible because only a small number of troops were in Afghanistan, and “the highly dangerous and unique nature of their work makes it difficult to embed media,” according to court records. Hustler was later told that the media could have extensive access to other aspects of military operations, such as air strikes and food drops.

Flynt’s suit contended that the Defense Department violated his magazine’s constitutional rights by not immediately allowing journalists for Hustler to accompany U.S. troops. Despite the lawsuit, Flynt was persistent in his requests, and Hustler reporter David Buchbinder was embedded with U.S. troops in Afghanistan in May 2002, according to court records.

Last February, Judge Paul Friedman of U.S. District Court in Washington, D.C., said he lacked jurisdiction to rule on the constitutionality of the issue because no formal denial was ever issued by the Pentagon.

Flynt argued in court records that an interpretation of the 1980 Supreme Court ruling in Richmond Newspapers v. Virginia gave journalists access to troops and other “government operations” because it established a constitutional right of public access to criminal trials.

The appeals court disagreed, ruling that there “is nothing we have found in the Constitution, American history or our case law to support this claim.”

The court also cited its ruling in the 1996 case JB Pictures, Inc. v. Dep’t of Defense, which said the First Amendment does not guarantee any right of access to government activities just because such access might improve reporting.

Fidell said that the media will likely always be at the mercy of the Pentagon.

“The notion that the media have the right to not just be there, but to ride along with troops, is unsupported,” he said. “And it will probably never get traction.”

(Flynt v. Rumsfeld; Media Counsel: Paul J. Cambria Jr., Lipsitz, Green, Fahringer, Buffalo, N.Y.) MG

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