Appeals court lets Pentagon keep reporter escort rule for now
A divided D.C. Circuit panel paused a lower-court block on the Pentagon policy while The New York Times presses its First Amendment challenge.
By Sal Moretti · Money Reporter
3 min read
A divided federal appeals court said Thursday that the Pentagon may keep enforcing a rule requiring journalists to be escorted whenever they are on department grounds, handing the Trump administration an interim win in a fight with The New York Times.
The U.S. Court of Appeals for the District of Columbia Circuit split 2-1 and paused a lower-court ruling that had blocked the escort requirement. The order keeps the policy in place while the legal battle continues.
Judges Karen Henderson and Patricia Millett said the Defense Department is likely to prevail on its argument that the escort rule does not amount to unlawful retaliation under the First Amendment. Henderson was appointed by former President George H.W. Bush, and Millett was appointed by former President Barack Obama.
In an unsigned order, the two judges said the Times and its reporter Julian Barnes had not argued that the escort requirement was anything other than generally applicable to reporters. The judges also said the challengers had not claimed the policy was being enforced unevenly, or that it harmed them differently from other covered journalists.
Judge Bradley Garcia, appointed by former President Joe Biden, dissented. He wrote that a government policy alleged to be retaliatory should not be shielded merely because it applies broadly.
Garcia said that if threatening a single journalist with an escort requirement could chill that journalist’s speech, the effect would not disappear because the same rule was imposed on every reporter. He wrote that the chill could be stronger for a speaker concerned about colleagues.
A spokesperson for The New York Times said the newspaper was disappointed by the interim decision, but appreciated that the court had sped up the appeal and looked forward to arguing the case on the merits.
The Pentagon press fight
The dispute is part of a broader clash over press access at the Pentagon under Defense Secretary Pete Hegseth. The Defense Department tightened rules for journalists covering the military and required reporters to accept a set of restrictions to keep credentials granting limited access to the building.
Several news organizations, including CBS News, The Washington Post, CNN and The New York Times, declined to accept the new rules, according to CBS News.
The Times and Barnes sued over the restrictions, arguing they violated the First Amendment. After a federal judge invalidated some of the rules in March, the Pentagon issued a revised policy that moved press workspace out of the building and required journalists on Pentagon grounds to be accompanied by authorized department personnel.
The Times filed a second lawsuit in May targeting the escort policy, again arguing that it violates the First Amendment. Last month, U.S. District Judge Paul Friedman sided with the newspaper and blocked the rule.
The Trump administration appealed Friedman’s decision. Justice Department lawyers argued that the escort policy applies equally to all journalists entering the Pentagon and has not stopped reporters from gaining access for newsgathering. In court filings, the Justice Department called the Times’ retaliation claims “nonsensical.”
The appeals court’s order does not decide the full case. It allows the escort requirement to remain active while the court considers the merits of the appeal.
This story draws on original reporting from CBS News.