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When it comes to the First Amendment, the government is subject to different rules regarding restrictions on speech, dependent on the type of forum. So, for instance, in a public forum, the public's free speech rights are the greatest and the government's authority to regulate speech is very limited. In a non-public forum, the government can impose greater restrictions, but it still can't discriminate on the basis of viewpoint. And once it opens up a non-public forum to the press—like the Pentagon, for example—it can't grant or remove access arbitrarily and only to those it favors.
And yet, on October 6, 2025, the Defense Department instituted a new policy regarding the press' access to the Pentagon that was clearly meant to signal its disapproval with certain media coverage. In order to maintain their press credentials (a Pentagon Facility Alternate Credential, or PFAC), each outlet was required to sign off on new restrictions on who they could talk to and what they could report. The new policy characterized press access as a "privilege" and asserted that such access is "not a constitutionally protected right." It created new criteria for journalists to follow in order to maintain their PFAC, including prohibiting "soliciting" the disclosure of non-public information. Examples of solicitation include "direct communications with specific personnel" or "calls for tips encouraging employees to share non-public department information." A reporter could also lose their credentials if they were "reasonably determined to pose a security or safety risk" through, for example, "unprofessional conduct that might serve to disrupt Pentagon operations." The policy also prohibits soliciting something called Controlled Unclassified Information, or CUI; there are 113 categories of such information.
Many media outlets turned in their credentials instead of signing off on the new policy. That included CNN, Fox, The Washington Examiner, Newsmax and The Daily Caller. The folks that stayed are a veritable who's who of MAGA social media darlings, including Laura Loomer and Matt Gaetz, along with such hard-hitting news outlets as Project Veritas and National Pulse. Oh, and let's not forget the MyPillow guy, Mike Lindell, who said he was determined to make Trump "proud" of his coverage.
In response to these machinations, The New York Times sued on the grounds that the policy violates the First and Fifth Amendments to the U.S. Constitution. And last Friday, U.S. District Judge Paul Friedman of the District of Columbia agreed with the Times that the policy violates free speech rights and violates due process rights under the Fifth Amendment.
Friedman's opinion reiterated the long-standing protections of press freedoms and the dangers of "measures that would allow government to insinuate itself into the editorial rooms of this Nation's press." In a ruling on a motion for summary judgment, the judge concurred that reporters have a liberty interest in press credentials and that they can't be removed without due process. The Court also found that the policy was too vague to provide any meaningful notice as to what conduct would get the badge revoked. This, in turn, poses First Amendment problems since an overly vague policy has a chilling effect on the type of reporting journalists do. They might self-censor so that the department is "proud" of their work, like Mike Lindell is shooting for, in order to keep their credential.
The Court also found that the policy was being enforced arbitrarily. Supposedly, tip lines are prohibited, and yet an exception was made for Loomer's call for tips on her website. Similarly, James O'Keefe was granted a PFAC despite having been convicted for crimes involving trespassing and deceit, offenses that the policy states disqualifies an applicant as a safety or security risk.
Finally, the Court held that the policy discriminates on the basis of viewpoint. When the administration pointed out that conservative outlets also refused to sign off on the policy, the court said that only proved that the policy discriminates on "editorial viewpoint" and not based on political viewpoint—"whether the individual or organization is willing to publish only stories that are favorable to or spoon-fed by Department leadership." The Court concluded: "In sum, the undisputed evidence reflects 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. That is viewpoint discrimination, full stop."
As a remedy, the judge vacated the challenged provisions of the policy—those changes implemented by Donald Trump's Department of Defense. Thus, the plaintiffs are entitled to have their press credentials reinstated. As a final word, the judge quoted Justice Louis D. Brandeis, "Sunlight is the most powerful of all disinfectants."
So, how did DoD respond? In addition to the standard White House promise to appeal any adverse court ruling, the Pentagon has now closed reporters' physical workspace in the Pentagon—known as Correspondent's Corridor—and kicked everyone out. The reason given was "security considerations"—which is spokesperson-speak for "take your court order and shove it."
The Times immediately said it would go back to court, as this action is a violation of both the letter and spirit of the ruling. And indeed, it's hard to see this as anything but retaliatory. Perhaps DoD thought that "Well, since the judge said we can't just let in the media we like, then we won't let anyone in." But the Court also held that there are due process considerations here. The government can't act arbitrarily or for an unlawful purpose, like retaliation, in removing press access. They seem to be ignoring that part of the opinion. Like so much else with this administration, they're following an authoritarian playbook, of which transparency and a free and independent press are not a part. (L)