The Press Does Not Have the Right to Travel with Combat Troops

David B. Sentelle

At the start of the U.S. war against terrorism, during the initial forays into Afghanistan to fight against the al Qaeda terrorist network, the press was clamoring to report on the war. Reporters specifically sought to be "embedded," or integrated, into groups of combat troops as they went into battle. Larry Flynt, publisher of Hustler magazine, applied to the Department of Justice for permission for a reporter to travel with military troops as part of the embedding process. When his request was not immediately granted, he filed a lawsuit seeking a declaration of the right of the press to be embedded. David B. Sentelle delivered the decision of the federal court of appeals. He clarified that although the press has a right to information, it does not have a right of access to travel with military units. Sentelle is a judge for the U.S. Court of Appeals for the District of Columbia.

Source

David B. Sentelle, opinion, Flynt v. Rumsfeld, U.S. Court of Appeals, Washington, DC, 2004.

Primary Source Text

As a threshold matter, it is important to clarify the right appellants seek to protect. In candor, it is not at all clear from appellants' complaint below or briefs in this court precisely what right they believe was violated or contend the courts should vindicate. After some pressing, at oral argument it became clear that they claimed a right, protected under the First Amendment, in their own words, to "go in [to battle] with the military." This right is different from merely a right to cover war. The Government has no rule—at least so far as Flynt has made known to us—that prohibits the media from generally covering war. Although it would be dangerous, a media outlet could presumably purchase a vehicle, equip it with the necessary technical equipment, take it to a region in conflict, and cover events there. . . .

With that distinction made, appellants' claim comes more sharply into focus. They claim that the Constitution guarantees to the media—specifically Hustler's correspondent—the right to travel with military units into combat, with all of the accommodations and protections that entails—essentially what is currently known as "embedding." Indeed, at oral argument appellants' counsel stated that the military is "obligated to accommodate the press because the press is what informs the electorate as to what our government is doing in war."

The facial challenge is premised on the assertion that there is a First Amendment right for legitimate press representatives to travel with the military, and to be accommodated and otherwise facilitated by the military in their reporting efforts during combat, subject only to reasonable security and safety restrictions. There is nothing we have found in the Constitution, American history, or our case law to support this claim.

To support the position that there is such a constitutional right, appellants first point to cases that discuss the general purposes underlying the First Amendment. . . . These cases, however, say nothing about media access to the U.S. combat units engaged in battle. . . .

Likewise, this Court has held that "freedom of speech [and] of the press do not create any per se right of access to government . . . activities simply because such access might lead to more thorough or better reporting." JB Pictures, Inc. v. Dep't of Defense (1996). Appellants admit they face a "dearth of case law concerning press access to battles." From this unenviable position, they ask us to look to Richmond Newspapers, Inc. v. Virginia (1980), for guidance.

Richmond Does Not Apply

In Richmond Newspapers, a plurality of the Supreme Court held that a constitutional right of public access to criminal trials existed based on a long history of such access in the United States and in England at the time our organic laws were created. According to appellants, Richmond Newspapers established that the First Amendment may be interpreted to provide for a right of access to government operations, and that access is not limited to criminal trials. They assert that we must apply a Richmond Newspapers analysis to the facts of this case. We disagree.

In Center for National Security Studies v. Department of Justice (2003), we held that there was no First Amendment right for plaintiffs to receive the identities of INS [Immigration and Naturalization Service] detainees and material witnesses who were detained in the wake of the September 11 [2001] attacks. Indeed, we made it clear that "neither the Supreme Court nor this Court has applied the Richmond Newspapers test outside the context of criminal judicial proceedings or the transcripts of such proceedings." For emphasis, we added that "neither this Court nor the Supreme Court has ever indicated that it would" do so (emphasis in original). Instead, we noted that in all areas other than criminal proceedings, the Supreme Court has applied the general rule of Houchins v. KQED (1978) (plurality opinion), not the exception of Richmond Newspapers. Houchins held that the press have no First Amendment right of access to prisons, and in doing so stated that the First Amendment does not "mandate a right of access to government information or sources of information within the government's control." To summarize, neither this Court nor the Supreme Court has ever applied Richmond Newspapers outside the context of criminal proceedings, and we will not do so today.

Appellants argue that we did, however, use the analysis underlying the Richmond Newspapers decision in JB Pictures, Inc. v. Department of Defense. In that case, several media and veterans organizations challenged a Department of Defense policy. That policy shifted ceremonies for deceased service members arriving from overseas from Dover Air Force base to locations closer to the service members' homes. It also gave the families of deceased military personnel the authority to limit press access to those ceremonies. Contrary to appellants' assertion, the extent of our Richmond Newspapers discussion in that case is contained in one sentence: "[i]t is obvious that military bases do not share the tradition of openness on which the Court relied in striking down restrictions on access to criminal court proceedings in . . . Richmond Newspapers." Thus JB Pictures not only does not support wholesale adoption of a Richmond Newspapers analysis in every case involving requests for access to government activities or information, it rejects such a rule.

Even if we were to apply a Richmond Newspapers test, which again, we do not, it would not support appellants' facial challenge to the Directive.¹ As an initial matter, the history of press access to military units is not remotely as extensive as public access to criminal trials. Without going into great historic detail, it is sufficient that in Richmond Newspapers the Supreme Court relied on the "unbroken, uncontradicted history" of public access to criminal trials. This includes the time when "our organic laws were adopted." Indeed, ever since "the ancient town meeting form of trial," the "people retained a 'right of visitation' which enabled them to satisfy themselves that justice was in fact being done."

1. Department of Defense Directive 5122.5, the rule that guides decisions regarding media access to combat troops

No Historical Right of Access

No comparable history exists to support a right of media access to U.S. military units in combat. The very article cited by appellants for the proposition that media have traditionally had broad access to soldiers in combat does not support this position. Beginning with the American Revolution, war reporting was primarily in the form of private letters from soldiers and official reports that were sent home and published in newspapers. Indeed, the rise of the professional war correspondent did not begin until at least the time of the Civil War. In addition, it is not entirely clear that in any of our early wars the media was actively embedded into units, which is the right appellants seek. In sum, even if we were to attempt a Richmond Newspapers analysis and consider the historical foundations of a right of media access to combat units, appellants' claim would fail miserably.

Even if Richmond Newspapers applied in this context, and even if there was a historical basis for media access to troops in combat, the Directive would still not violate the First Amendment. Richmond Newspapers expressly stated that "[j]ust as a government may impose reasonable time, place, and manner restrictions" in granting access to public streets, "so may a trial judge . . . impose reasonable limitations on access to a trial." These limitations could be based on the need to maintain a "quiet and orderly setting," or "courtrooms' . . . limited capacity." The Directive appellants challenge is incredibly supportive of media access to the military with only a few limitations. The Directive begins with the command that "open and independent reporting shall be the principal means of coverage of U.S. military operations." It further orders military public affairs officers to "act as liaisons, but not [to] interfere with the reporting process." Additionally, "field commanders should be instructed to permit journalists to ride on military vehicles and aircraft when possible." The restrictions contained in the Directive are few, including: special operations restrictions; limited restrictions on media communications owing to electromagnetic operational security concerns; use of media pools [small numbers of reporters] when the sheer size of interested media is unworkable, such as at the beginning of an operation; and expulsion for members of the media who violate the ground rules. Appellants have offered no reason to conclude that these restrictions are unreasonable. Even if Richmond Newspapers did apply, appellants' argument would fail.