In a scathing opinion issued Thursday, U.S. District Judge Paul L. Friedman ruled that the Department of Defense has failed to comply with a court order to restore press access for The New York Times, accusing the military of attempting an “end-run” around the Constitution.
The ruling comes after the Pentagon issued an “Interim Policy” that essentially rebranded the very rules the court recently declared unconstitutional.
Judge Friedman described the Department’s actions as a “blatant attempt to circumvent a lawful order.”
The Shell Game of “Unauthorized Disclosure”
Last month, the court vacated a Pentagon policy that allowed officials to revoke press credentials (PFACs) for “soliciting” unauthorized information. The court found that this penalized standard journalism—the act of asking questions.
In response, the Pentagon replaced the word “solicitation” with “intentional inducement of unauthorized disclosure.” The Department argued this was a “targeted clarification.” Judge Friedman disagreed, stating the Department was simply “using revised language to proscribe the same lawful journalistic practices.”
The new policy also created a “rebuttable presumption” that a journalist is acting unlawfully if they offer anonymity to a source. Judge Friedman called this requirement “illusory” and a “mirage,” noting that granting anonymity is a routine and protected part of reporting.
“A journalist’s offer of anonymity or privacy protection… shall create a rebuttable presumption that the journalist knew the employee was not authorized to disclose the information sought,” the Pentagon’s Interim Policy stated.
Judge Friedman responded: “The Department thus need not establish that a journalist actually knows anything to find the journalist presumptively in violation… Every Pentagon reporter routinely will be presumptively in violation.”
Physical Exile from the Pentagon
Beyond the legal definitions, the court found the Pentagon physically obstructed the press. Immediately after being ordered to reinstate credentials for Times reporter Julian Barnes and others, the Department closed the “Correspondents’ Corridor,” a workspace reporters have used for decades inside the building.
Under the new rules, journalists are relegated to a separate building and cannot enter the Pentagon without a military escort. Judge Friedman dismissed the Pentagon’s claim that this was due to security concerns or prior planning, noting the “suspicious timing” of the move.
The court highlighted a “Kafkaesque” incident where Mr. Barnes was turned away from a scheduled interview because security staff were not briefed on the new, confusing procedures.
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A Message to the Secretary
The opinion concluded by addressing the broader implications of the Department’s resistance. Judge Friedman framed the case as a struggle over who controls the flow of information to the American public.
“The case is really about: the attempt by the Secretary of Defense to dictate the information received by the American people, to control the message so that the public hears and sees only what the Secretary and the Trump Administration want them to hear and see,” Friedman wrote. “The Constitution demands better.”
The court relied heavily on the First Amendment and the landmark 1971 New York Times Co. v. United States (Pentagon Papers) case. Judge Friedman cited Justice Black’s famous concurring opinion to remind the government of the press’s role:
“The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.”
As of today’s ruling, the Department of Defense is expected to come into full compliance with the original order, though the Department has indicated it may pursue an appeal.
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