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A divided federal appeals court ruled Monday that the Defense Department can require journalists to be escorted on Pentagon grounds while the Trump administration appeals a lower-court decision blocking enforcement of a Pentagon press access policy challenged by The New York Times.
The ruling by the U.S. Court of Appeals for the District of Columbia Circuit did not end the Times’s lawsuit. It instead kept the escort requirement in place by suspending an April 9 order by U.S. District Judge Paul Friedman, who had ruled the Defense Department was violating a previous order meant to restore reporter access to the Pentagon.
According to the appeals court’s majority, the government is likely to succeed in showing that the escort requirement is legally valid as the case continues. Circuit Judges Justin Walker, J. Michelle Childs and Bradley Garcia heard the dispute, with Childs dissenting from the 2-1 majority.
Friedman had found that the Pentagon’s new credential policy violated journalists’ constitutional rights to free speech and due process. Friedman said the Defense Department’s actions were an effort to evade his March 20 ruling by adopting new rules that would expel all reporters from the building unless guided by escorts.
Childs, in dissent, criticized the practical effect of the escort requirement. She wrote, “Reporters can hardly verify sources, gather information, or speak candidly with Department personnel with an escort looming over their shoulders.”
The Defense Department said it welcomed the appeals panel’s decision. In a statement posted on social media, Pentagon spokesperson Sean Parnell said the department expects to argue the merits of its “full case” before the same panel.
Parnell said unescorted access to the Pentagon has led to what he called “regular unauthorized disclosure of sensitive and classified national defense information.” He also wrote that since implementing the current access policy, the department has seen a “meaningful reduction” in those unauthorized disclosures, which he said can endanger the lives of service members, intelligence personnel, and U.S. allies.
Theodore Boutrous, an attorney for The Times, said the panel’s ruling was “a narrow, preliminary one” and “casts no doubt” on the strength of the newspaper’s constitutional arguments. Boutrous said the Times looks forward to defending the district court rulings in its favor in the appeal.
The case also reflects recent judicial appointments. President Donald Trump, a Republican, nominated Walker, while President Joe Biden, a Democrat, nominated Garcia and Childs. Friedman was nominated by Democratic President Bill Clinton.