Accompanying the Troops
The media have no constitutional right to battlefield access, a court rules.
By Jane Kirtley
Larry Flynt, who publishes Hustler magazine, may seem like an unlikely champion of First Amendment rights for the news media. True, in the late 1980s, he fought back against the Rev. Jerry Falwell's attempt to recover damages for "emotional distress" arising from a cartoon parody, resulting in a decisive victory for satirical speech in the U.S. Supreme Court.
Jane Kirtley (email@example.com) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
But most people think of Flynt as somebody who only uses the Constitution to protect his right to distribute pornography. Flynt does do that, of course. But he's also been a constant and relentless critic of the government's attempts to restrict media coverage of war. And he puts his money where his mouth is. In 1983, when the military prevented the press from covering its operation on the island nation of Grenada, other media organizations were AWOL. They protested, but they didn't sue, probably because their lawyers had told them they couldn't win. But that didn't deter Flynt. He filed a lawsuit to try to establish a First Amendment right of access to military operations.
He lost that round, for the frustrating and sometimes perplexing reason that the federal appeals court in the District of Columbia found the case "moot." The two-day exclusion from Grenada was long over by the time the case was heard. In both Flynt's case and in subsequent cases brought by other news organizations during the first Persian Gulf War, federal judges, reluctant to tackle the fundamental question, instead ruled that because each war was different, each set of restrictions is also different. What is unconstitutional today might be acceptable tomorrow, and vice versa. Courts prefer to rule on "live" controversies, which means that war has to be raging when the case is considered. That's not easy to do, since recent conflicts have been so brief.
So, on October 30, 2001, Flynt sent then-Pentagon spokeswoman Victoria Clarke a letter, asking that his Hustler reporters be allowed to accompany ground troops on combat missions and elsewhere on the battlefields in Afghanistan. Two weeks later, having received no answer, he wrote again. Clarke faxed him back three days later, saying that because only special operations were going on at the time, it was too dangerous to embed journalists with the units. She suggested that Flynt contact the Fifth Fleet public affairs officer to arrange access to airstrikes and set up interviews with soldiers, as other media representatives had done.
But Flynt wasn't interested in that kind of access. He sued in federal district court in Washington, D.C., on November 16, 2001, claiming the Pentagon's directive and controversial statement of principles on media access, which had been drafted in the wake of the first Persian Gulf War, deprived him of his First Amendment right of access to the battlefield. In January 2002, Judge Paul L. Friedman ruled that Flynt's claims weren't ready for review, because the Defense Department hadn't yet made a final decision on his request.
Flynt appealed, even though one of his reporters later gained access to ground troops in Afghanistan. But this February, although agreeing that Flynt's claims were ripe for consideration, a unanimous three-judge panel of the federal appeals court in D.C. dismissed them, ruling that no First Amendment right of access to military operations exists.
Judge David B. Sentelle wrote, "There is nothing we have found in the Constitution, American history, or our case law to support this claim." He rejected Flynt's argument that the Supreme Court's 1980 ruling in Richmond Newspapers Inc. vs. Virginia should apply in this case. Richmond Newspapers recognized a constitutional right of access to criminal proceedings. But that was based on a long history and tradition of public trials. Sentelle, as he did in a 2003 D.C. Circuit decision denying access to the identities of post-9/11 detainees, declined to expand Richmond Newspapers beyond the context of criminal proceedings. Instead, relying on the high court's 1978 opinion in Houchins vs. KQED, Sentelle reiterated the principle that the press has no First Amendment right of access to government information, or to places, like prisons or battlefields, where the general public can't go.
Even if Richmond Newspapers did apply, Sentelle contended no comparable historical right of access to combat units exists. Asserting that "the rise of the professional war correspondent did not begin until at least the time of the Civil War," he concluded that Flynt's First Amendment claim "fail[s] miserably." The Pentagon's directive contains reasonable "time, place and manner restrictions," which, Sentelle added, were "incredibly supportive of media access to the military."
Some journalists might differ with that assessment. But in the meantime, the message from the court is clear: With no constitutional right to accompany troops into war, the press should be grateful for whatever access the military decides to allow.
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