Federal judge: Pentagon press access policy is unconstitutional

A federal judge ruled on Friday that the Pentagon’s media access policy violated the Constitution, concluding in part that it was intended “to weed out disfavored journalists” and replace them with reporters who are “favorable to or spoon-fed by department leadership.”

The Pentagon’s new policy, which was implemented last fall, afforded government officials standardless discretion to deny, suspend, or revoke a journalist’s press pass for engaging in lawful newsgathering, including asking sources questions. Nearly the entire Pentagon press corps refused to sign the policy, choosing instead to turn in their press badges and leave the Pentagon. 

The New York Times sued the Pentagon in December, alleging that the media access policy violated federal law and the First and Fifth Amendments. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of The Times’s lawsuit, arguing that the policy threatened to leave the public in the dark about critical matters of national defense and foreign policy.

In a 40-page ruling, Judge Paul Friedman of the U.S. District Court for the District of Columbia sided with The Times. The judge found that the policy violated the First Amendment because it is “unreasonable” and discriminates based on viewpoint. He also concluded that the policy violated the Fifth Amendment because it failed to provide clear standards governing when a journalist’s press credential can be denied.

“A primary purpose of the First Amendment is to enable the press to publish what it will and the public to read what it chooses, free of any official proscription,” Judge Friedman wrote. “Those who drafted the First Amendment believed that the nation’s security requires a free press and an informed people and that such security is endangered by governmental suppression of political speech. That principle has preserved the nation’s security for almost 250 years. It must not be abandoned now.”

Gabe Rottman, the Reporters Committee’s vice president of Policy, made the following statement:

“In a careful opinion, the court affirmed that our security and liberty rely on the press’s freedom to publish and the public’s ability to access news about government affairs free from state control. The Pentagon’s policy cannot be squared with the Constitution and, especially at this moment, threatens to deny the electorate crucial information about the military.”

In an order accompanying his opinion, Judge Friedman threw out all of the provisions of the policy challenged by The Times and blocked the Pentagon from implementing or enforcing any of those provisions. The judge also ordered the Pentagon to restore the press credentials for seven Times journalists. 

Sean Parnell, the chief spokesman at the Pentagon, said in a post on X, “We disagree with the decision and are pursuing an immediate appeal.”

The Times is represented in the case by a team at Gibson Dunn & Crutcher that includes partners Ted Boutrous, a member of RCFP’s board and executive committee, and Katie Townsend, RCFP’s former deputy executive director and legal director.