The U.S. Defense Secretary, Pete Hegseth, implemented new rules in September for reporters previously based in the Pentagon.[1] Any reporter who did not sign the new rules lost their press privileges on Wednesday, October 15.[2] Many believe this move is part of a broader effort to “limit reporters’ ability” to report on Pentagon activities.[3] Do these rules, which also ban reporters from soliciting information, violate the First Amendment?

The new rules limit the areas of the Pentagon where the press is allowed to roam freely.[4] Initially, a change to the policy mandated that Pentagon information be “approved for public release by an appropriate authorizing official before it is released, even if it is unclassified.”[5] However, that provision was removed in a later revision of the policy.[6] The updated rules prohibit reporters from soliciting information from individuals and may classify them as “a security or safety risk” if they do.[7] This would apply, for example, to situations where a reporter asks Department of War personnel for “non-public information without proper authorization.”[8] 

Following the communication of the revised rules, many major networks, including NBC News, ABC News, CBS News, CNN, and Fox News Media, released a joint statement that stated: 

"Today, we join virtually every other news organization in declining to agree to the Pentagon’s new requirements, which would restrict journalists’ ability to keep the nation and the world informed of important national security issues. The policy is without precedent and threatens core journalistic protections. We will continue to cover the U.S. military as each of our organizations has done for many decades, upholding the principles of a free and independent press.”[9] The Pentagon Press Association has also been involved in the matter, stating that, “the Pentagon has no reason for the new acknowledgement other than to chill both reporters and their sources – something many of our members cannot abide."[10]

Initially, few news organizations signed on to the new rules; however, as of Wednesday, October 22, sixty journalists signed on and received new credentials.[11] The corps mainly consists of smaller groups, such as Lindell TV, “Human Events, the Post Millennial, RedState[,] and the Washington Reporter.”[12] Major news outlets, regardless of political affiliation, have refused to sign the new rules, choosing instead to vacate their Pentagon offices.[13]

In one way or another, “registered media access [in the Pentagon] has existed in some form since the Truman administration.”[14] Critics of these new requirements have raised concerns about them infringing on First Amendment rights,[15] citing them “as an attack on protected newsgathering activity.”[16] Some have questioned whether this prior restraint is constitutional and whether the media has special access beyond the public. The most significant prior restraint cases are Near v. Minnesota and New York Times v. United States.[17] In Near v. Minnesota, the court ruled that the government is typically not permitted to prevent news organizations from disseminating information; however, prior restraint may be constitutional in cases where the U.S. is at war or when publications could incite violence.[18] In New York Times v. United States, the Supreme Court held that the mere threat of a breach of “security” was insufficient without a clear, “inevitable, direct, and immediate danger to the United States.”[19] However, the Pentagon removed the requirement initially published that stated that all information reported on must have official approval.[20] As a result, this does not seem to be as prevalent of an issue. 

Now, the main legal question appears to center the media’s ability to obtain information, since it is the solicitation that is prohibited in the new rules. A key precedent here is Houchins v. KQED. In Houchins, KQED sued after a sheriff denied the press access to a county jail, arguing that the public had a right to be informed of the jail’s conditions.[21] A plurality of the court held that there is no constitutional right to obtain government information from the First or Fourteenth Amendments.[22] For example, some agencies, like the CIA, have never had a media presence in their halls.[23] In addition, Branzburg v. Hayes was a case where a news reporter was subpoenaed to testify after witnessing a crime, but the court held that some newsgathering is entitled to First Amendment protection.[24]

The key legal issue here arises from the Pentagon’s rule prohibiting the press from soliciting information. Because of Houchins, there is likely no constitutional problem with restricting the locations in the Pentagon that the press is allowed to access. There also does not appear to be a prior restraint concern, as the Pentagon removed the rule requiring everything to be authorized before being released. However, while there is no constitutional obligation for the press to be allowed access inside the Pentagon, such access has long been granted. Thus, the rule banning the press from soliciting information, rather than just reporting on the information they are given, is likely to impede the freedom of the press. This raises constitutional concerns under Branzburg, given that the Court acknowledged that newsgathering is protected under the First Amendment.[25] 

If a challenge arises, it will likely be reviewed under the strict scrutiny framework, as the rule targets the solicitation of non-public information, rather than information that is already available to the public.[26] Under strict scrutiny, the government will have to demonstrate that the rule was narrowly tailored to fulfill a compelling government interest and the government employed the least restrictive means.[27] Here, the government likely has a strong argument that protecting national security constitutes a compelling interest and that the rule uses the least restrictive means. However, the current rule is likely not narrowly tailored as it appears to ban the solicitation of all information, whether classified, sensitive, or not. As a result, the rule would likely fail strict scrutiny as it impacts a substantial amount of speech and is not narrowly tailored.

Regardless of the legal outcomes of future cases, there are significant policy implications. The leaking of classified information to the media would be illegal for military personnel, so this additional step to penalize the press seems misplaced.[28] Jane Kirtley, a law professor at the University of Minnesota, has stated, “If you’re going to ask a source for material, then it’s on that source to make a judgment about whether they’re allowed to distribute it or not.”[29] Similarly, Mick Mulroy of the Belfer Center’s Intelligence Project said the military “has traditionally been one of the most respected, if not the most respected, parts of the government. That comes with a certain amount of transparency in a free society. Without that transparency, that trust and respect could diminish.”[30] 

Whether we see a First Amendment challenges emerge, this policy risks creating a dangerous chilling effect on the media’s newsgathering and may significantly impact the type of news that is available to the public.