Striking Down Pentagon Press Limits, Judge Vindicates Independent Journalism
"The ruling cut deeper than left-versus-right politics, declaring that the policy imposed by Defense Secretary Pete Hegseth is unconstitutional.
Charlie Savage writes about national security and legal policy. He reported from Washington.
A federal judge on Friday forcefully defended the constitutional freedom to report independently and without government control, striking down the Trump administration’s unprecedented restrictions on reporters that have emptied the Pentagon’s halls of traditional journalists at a time of expanding war.
“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,” wrote Judge Paul L. Friedman of the Federal District Court in Washington.
“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,” he continued. “That principle has preserved the nation’s security for almost 250 years. It must not be abandoned now.”
In his 40-page ruling, Judge Friedman dissected the policy imposed by Defense Secretary Pete Hegseth, who has made Pentagon press passes available since October only to people who signed agreements not to solicit information the Trump administration has not approved for release.
A broad range of news outlets balked at the requirement. They included mainstream publications like The New York Times, The Washington Post and The Wall Street Journal, broadcast news programs and wire services, and conservative-leaning outlets like Fox News, Newsmax, The Washington Examiner and The Daily Caller.
When the reporters turned in their credentials, a new press corps took their place. Passes were issued to Trump loyalists like Laura Loomer, an activist; Matt Gaetz, a former congressman President Trump initially wanted to make attorney general; James O’Keefe, the founder of a conservative sting video group; Mike Lindell of MyPillow, who has started a digital news site; and a handful of other commentators, conspiracy theorists and outlets that are mostly unabashed political boosters of Mr. Trump.
The New York Times filed suit in the name of one of its national security reporters, Julian E. Barnes. Strikingly, multiple large news outlets declined to risk joining the litigation, although the Pentagon Press Association filed a friend-of-the-court brief.
It has been a grim time for press freedom. The Pentagon’s policy, overseen by its chief spokesman, Sean Parnell, is just one way in which Mr. Trump and his administration have challenged or undermined norms of independent journalism, penalizing news organizations for articles they deem to be critical and seeking greater control over coverage.
Mr. Trump has filed defamation lawsuits against news organizations owned by corporations with business before the government and sued or threatened to sue others, including The Times. Attorney General Pam Bondi rescinded protections for reporters caught up in leak investigations, and the F.B.I. searched a Washington Post reporter’s home. The chairman of the F.C.C., Brendan Carr, a Trump appointee, has threatened to pull licenses over coverage he dislikes.
Against that backdrop, the judge’s repudiation of rules that led to the exodus of credentialed Pentagon reporters from virtually every mainstream news outlet stands, at least for now, as a vigorous affirmation of constitutional press freedom.
The policy, the judge wrote, violated the First Amendment because it amounted to viewpoint discrimination and was unreasonable, and violated the Fifth Amendment because it was vague and granted too much arbitrary power to officials who could dispense favors or punishment at will.
“The considerations that may or may not lead to a reporter being deemed ‘a security or safety risk’ include obtaining or attempting to obtain any information that the department has not approved for release, regardless of whether that information is classified,” the judge wrote. “But to state the obvious, obtaining and attempting to obtain information is what journalists do. A primary way in which journalists obtain information is by asking questions.”
The ruling is just a first step. Judge Friedman was appointed by President Bill Clinton, a Democrat. The Trump administration has lost many cases before judges at the lower court level, only to prevail on appeal, especially before the Supreme Court, which is dominated by a Republican-appointed supermajority.
But the core part of the ruling — its finding that the policy was aimed at and produced unconstitutional viewpoint discrimination — cuts deeper than left-versus-right politics in American democracy.
The Trump administration had argued that its policy could not be discriminatory because journalists at conservative outlets were among those who refused to sign it. True enough, the judge wrote, but beside the point. The viewpoint Mr. Hegseth was discriminating against, he said, was not liberalism or conservatism, but the view that journalism must be independent.
“The record evidence supports the conclusion that the policy discriminates not based on political viewpoint but rather based on editorial viewpoint — that is, whether the individual or organization is willing to publish only stories that are favorable to or spoon-fed by department leadership,” he wrote.
The judge concluded that “the undisputed evidence” showed the policy’s “true purpose and practical effect: to weed out disfavored journalists — those who were not, in the department’s view, ‘on board and willing to serve’ — and replace them with news entities that are.”
The cited quotation came from a statement by the press secretary for the Pentagon, Kingsley Wilson, at a Dec. 2 briefing in which she approvingly told the reconstituted press corps that it was composed of people “on board and willing to serve our commander in chief.”
Judge Friedman called this “viewpoint discrimination, full stop.” He also described it as a “sea change” in the Pentagon’s relationship with journalists who, in the past, did not have their credentials effectively revoked even when they were critical of the Defense Department or published classified information like the Pentagon Papers during the Vietnam War.
“The court recognizes that national security must be protected, the security of our troops must be protected, and war plans must be protected,” he concluded, adding that the ruling was coming at a particularly crucial time.
“Especially in light of the country’s recent incursion into Venezuela and its ongoing war with Iran,” he wrote, “it is more important than ever that the public have access to information from a variety of perspectives about what its government is doing — so that the public can support government policies, if it wants to support them; protest, if it wants to protest; and decide based on full, complete and open information who they are going to vote for in the next election.”
Charlie Savage writes about national security and legal policy for The Times.""
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