A Free Press and National Security

“Our liberty depends on the freedom of the press and that cannot be limited without being lost” said Thomas Jefferson in 1786. The Trump administration has treated fact-based journalism as an enemy to be derided, delegitimized, and defanged. An important battleground in the struggle to protect a free press has been the Washington, D.C. courtroom of Federal District Judge Paul Friedman.

Last fall, the Pentagon offered its credentialed press corps a Hobson’s choice: pack your bags and get out or agree that if you ask a question we don’t like, we’re entitled to evict you. Independent media left, replaced by administration supporters like the National Pulse, Matt Gaetz and Mike Lindell.  The New York Times filed suit.

In late March, Judge Friedman issued his decision.

He began with first principles: “A primary purpose of the First Amendment is to enable the press to publish what it will and the public to read what it chooses, free of any official proscriptions.”

And he observed that this principle had always been tied to national security: “Those who drafted the First Amendment believed that the nation’s security requires a free press and an informed people and that such security is endangered by governmental suppression of political speech.”

He concluded: “That principle has preserved the nation’s security for almost 250 years. It must not be abandoned now.”

Judge Friedman found that the Pentagon’s new “security risk”-based credentials policy had created “an unprecedented and significant impediment to The Times’ ability to cover the Department and its leadership, national security, and the U.S. military.” He struck it down on both due process and First Amendment grounds.

With respect to due process, he observed that the policy was so vague that a Defense Department determination that a journalist poses a security risk could be triggered by essential journalistic practices, such as asking questions. As a result, the policy unconstitutionally permitted — even encouraged — arbitrary and discriminatory enforcement.

With respect to the First Amendment, he noted undisputed evidence that the policy’s true purpose and effect was “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.” Among other evidence, he cited:

• Department officials calling “garbage” and “scum” the journalists who reported on Secretary Hegseth’s personal security detail and misuse of Signal;
• The Department’s inability to justify prohibiting the Washington Post but not pro-Trump activist Laura Loomer from publishing a tip line; and
• The credentialing of Project Veritas founder James O’Keefe despite his past guilty plea to federal trespass and false pretenses charges.

By way of remedy, Judge Friedman reinstated the former policy and the credentials of the journalists who had objected. He observed:

The Court recognizes that national security must be protected, the security of our troops must be protected, and war plans must be protected. But especially in light of the country’s recent incursion into Venezuela and its ongoing war with Iran, it is more important than ever that the public have access to information from a variety of perspectives about what its government is doing—so that the public can support government policies, if it wants to support them; protest, if it wants to protest; and decide based on full, complete, and open information who they are going to vote for in the next election.

Days later, the Pentagon instituted a “new” even more restrictive policy, the Times renewed its challenge and, in an April 9 decision, Judge Friedman once again struck it down. “The department simply cannot reinstate an unlawful policy under the guise of taking ‘new’ action,” he stated, “and expect the court to look the other way.” He reiterated: “The curtailment of First Amendment rights is dangerous at any time, and even more so in a time of war. Suppression of political speech is the mark of an autocracy, not a democracy.”

The Pentagon attack is by no means the administration’s first assault on the press, nor Judge Friedman’s decision its first reversal. In March, Federal District Judge Randolph Moss found in favor of NPR and PBS in their legal fight against President Trump’s executive order ending the public broadcasters’ federal funding. Also in March, Federal District Judge Royce Lamberth sided with Voice of America in its effort to prevent the Trump administration from shuttering the international broadcaster’s news operations.

The support of lawyers is critical to beating back the continuing attacks. Just last week, a coalition of press advocacy groups and media lawyers filed an amicus brief in the D.C. Circuit in the administration’s consolidated appeal of the many orders enjoining its retaliatory actions against law firms. As the brief argues, the press freedom guaranteed by the First Amendment will become an empty promise in the absence of lawyers willing to advocate on the press’s behalf.