Judge Rules Pentagon’s Press Policy Violates First and 5th Amendments in Victory for New York Times

A federal judge ruled Friday in favor of the New York Times in its lawsuit against the Defense Department, finding that the Pentagon’s press policy enacted last fall violates the First and Fifth Amendments.

Judge Paul Friedman of the U.S. District Court for the District of Columbia said the court will vacate and set aside the challenged provisions of the policy, and that the defendants — which include Defense Secretary Pete Hegseth and Chief Pentagon spokesman Sean Parnell — cannot enforce them “to deny, suspend, revoke or not renew” Times reporter and plaintiff Julian Barnes’s press badge, or PFAC (Pentagon Facility Alternate Credentials).

In addition, Friedman ordered that the defendants must immediately reinstate the press credentials for anyone who is employed or working on behalf of the New York Times, including reporters Eric Schmitt, Helene Cooper, Greg Jaffe and others.

“The New York Times welcomes today’s ruling, which enforces the constitutionally protected rights for the free press in this country,” Charlie Stadtlander, a spokesperson for The New York Times, said in a statement to TheWrap. “Americans deserve visibility into how their government is being run, and the actions the military is taking in their name and with their tax dollars. Today’s ruling reaffirms the right of The Times and other independent media to continue to ask questions on the public’s behalf.”

The Times, one of dozens of news outlets to reject the Pentagon’s new press restrictions and leave the building October, filed its suit against the Pentagon in December, alleging First and Fifth Amendment violations. A number of conservative outlets and influencers accepted the rules and filled the void inside the Pentagon.

It is unclear how Friday’s ruling will affect other news organizations that were not part of this lawsuit, but like the Times, relinquished their credentials in protest of the policy.

According to the rules issued in October, reporters had to acknowledge that seeking information from officials unauthorized to provide it could be considered as soliciting them to break the law. News outlets consider asking sources for information as routine news gathering.

The Defense Department, in court filings, said that “actively soliciting Department personnel to commit criminal acts — acts for which those personnel face prosecution under identified federal statutes — may be considered in determining whether the [badge]-holder poses a security risk.”

In his decision, Friedman wrote that “to state the obvious, obtaining and attempting to obtain information is what journalists do” and “a primary way in which journalists obtain information is by asking questions.”

Under the policy’s terms, he wrote, “essential journalistic practices that the plaintiffs and others engage in every day — such as asking questions of Department employees — could trigger a determination by the Department that a journalist poses a security or safety risk.”

A Pentagon spokesman did not immediately respond to a request for comment.

Attorney Theodore J. Boutrous Jr, a partner at Gibson Dunn who represented the Times, said in a statement to TheWrap that “the district court’s decision is a powerful rejection of the Pentagon’s effort to impede freedom of the press and the reporting of vital information to the American people during a time of war.”

“As the court recognized, those provisions violate not only the First Amendment and the Due Process Clause, but also the founding principle that the nation’s security depends upon a free press,” he added. “The district court’s opinion is not just a win for The Times, Mr. Barnes, and other journalists, but most importantly, for the American people who benefit from their coverage of the Pentagon.”

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