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Document Overview and Context
This is a civil complaint filed in the United States District Court for the District of Columbia on December 4, 2025. A complaint is the initial document that starts a lawsuit—it lays out what the plaintiffs believe happened, why it’s illegal, and what they want the court to do about it. This particular complaint seeks both declaratory relief (a formal court declaration that something is unlawful) and injunctive relief (a court order requiring the defendants to stop doing something or to take specific actions).
Think of this document as the opening statement in what could become a landmark case about press freedom. The New York Times is essentially telling a judge: “The Pentagon has adopted an unconstitutional policy that violates our rights, and we need you to strike it down before it causes further harm.”
The Parties Involved
Plaintiffs (those bringing the lawsuit):
- The New York Times Company: One of America’s most prominent newspapers, operating since 1851
- Julian E. Barnes: A national security reporter who has covered the Pentagon for various outlets since 2004
Defendants (those being sued, in their official capacities):
- Department of Defense/Department of War: The federal agency overseeing the U.S. military
- Pete Hegseth: Secretary of Defense under the Trump administration
- Sean Parnell: Pentagon Chief Spokesman and Assistant Secretary for Public Affairs
The fact that defendants are sued in their “official capacity” means the lawsuit challenges their actions as government officers, not them personally. This is standard practice when challenging government policies.
The Core Issue: What Happened?
To understand this case, you need to grasp what Pentagon press credentials are and why they matter.
Pentagon Press Credentials (PFACs)
For over 80 years, credentialed journalists have had access to the Pentagon building to cover military and defense matters. These credentials—called PFACs (Pentagon Facility Alternate Credentials)—function like press passes, allowing journalists to:
- Enter the Pentagon building
- Attend press briefings and conferences
- Have spontaneous conversations with Pentagon officials in hallways and common areas
- Work from dedicated press workspaces inside the building
- Quickly gather information when breaking news occurs
This access has enabled critical journalism, from coverage of the 9/11 attacks to investigative reporting on military operations. Reporters like Hanson W. Baldwin (who won a Pulitzer Prize in 1943) have long relied on this access to inform the American public about military matters.
The New Policy
On October 6, 2025, the Pentagon issued a dramatically new policy that fundamentally changes the terms of press access. The policy includes several provisions that the Times challenges:
1. Immediate Suspension Authority
Pentagon officials can immediately suspend a journalist’s credentials if they determine the journalist poses a “security or safety risk”—even before any hearing or chance for the journalist to respond.
2. Vague Grounds for Revocation
Credentials can be denied, suspended, or revoked based on extremely broad criteria:
- “Solicitation” of “unauthorized” information (whether classified or unclassified)
- Receipt or publication of such information
- “Unprofessional conduct that might serve to disrupt Pentagon operations”
3. Undefined Key Terms
The policy doesn’t clearly define what constitutes:
- “Solicitation” (Does asking questions count? What about having a tips page on your website?)
- “Unauthorized” information (Who decides what’s authorized?)
- “Unprofessional conduct” (What specific behaviors qualify?)
4. Standardless Discretion
Decisions are made “on a case-by-case basis” considering “the totality of the circumstances” with no objective criteria to guide officials.
5. Mandatory Acknowledgment
To maintain their credentials, journalists must sign a document stating they “understand” the policy—even if they disagree with it.
What Happened to the Times and Other Outlets
When the Pentagon announced this policy, it gave journalists until October 14, 2025, to sign the acknowledgment. Reporters from every major news organization—including The New York Times, Washington Post, CNN, CBS, NPR, and others—refused. They viewed the policy as an unconstitutional attempt to control their journalism.
As a result, these journalists were required to turn in their credentials on October 15, 2025. According to the complaint, only 1 out of 56 Pentagon Press Association members agreed to sign.
The “New Pentagon Press Corps”
Within days, the Pentagon welcomed what spokesman Sean Parnell called “the next generation of the Pentagon press corps.” These new credential holders include:
- Mike Lindell (MyPillow CEO), who promised to “make [the Administration] proud” with his coverage
- Laura Loomer (described as a “pro-Trump activist”)
- Matt Gaetz (former congressman, now affiliated with One America News)
- Raheem Kassam (editor of National Pulse, who described his publication as “basically an industry mag/site for MAGA world”)
Pentagon officials openly praised these new credential holders for avoiding a “biased agenda” and getting “real news to the American people,” while simultaneously calling the excluded journalists “activists who masquerade as journalists” and “propagandists” who spread “lies.”
This selective enforcement raises serious constitutional questions about whether the policy is being used to exclude critical journalists while favoring those sympathetic to the administration.
The Legal Claims: Seven Constitutional and Statutory Violations
The complaint asserts seven separate legal theories, each challenging different aspects of the policy. Let me explain each in detail.
Count I: Void for Vagueness (Fifth Amendment Due Process)
The Legal Principle:
The Constitution’s Due Process Clause requires that laws be clear enough that ordinary people can understand what conduct is prohibited. A law is “void for vagueness” if:
- It fails to give fair notice of what’s forbidden, or
- It’s so standardless that it encourages arbitrary and discriminatory enforcement
This requirement is especially strict when the law affects speech or press freedom, because vague laws cause people to “self-censor”—avoiding perfectly legal conduct out of fear they might accidentally cross an unclear line.
The Times’ Argument:
The policy uses terms so vague that journalists cannot know what will trigger suspension or revocation:
- What exactly is “solicitation”? The Pentagon says it “may include” asking questions, making public calls for tips, or having a tips page on your website—but these are common journalistic practices. The word “may” suggests even the Pentagon isn’t sure what counts.
- What information is “unauthorized”? The policy applies to both classified and unclassified information, but doesn’t explain how journalists can know in advance what’s unauthorized versus what’s not.
- What is “unprofessional conduct that might serve to disrupt Pentagon operations”? This could mean almost anything—asking tough questions at a briefing, reporting unflattering information, or even walking too slowly in a hallway.
The policy is also internally contradictory. It claims not to restrict journalism while explicitly allowing suspension based on “solicitation” and publication of unapproved information—which is precisely what journalism involves.
Legal Support:
The complaint cites Karem v. Trump (2020), where the D.C. Circuit Court of Appeals held that vague policies violating these standards cannot govern press credentials. The court emphasized that when “speech is involved, rigorous adherence to [fair notice] requirements is necessary to ensure that ambiguity does not chill protected speech.”
Evaluation:
This argument is strong. The policy genuinely fails to provide clear boundaries. Consider this: If you were a Pentagon reporter, could you confidently predict whether having a “submit tips” button on your news organization’s website would cost you your credentials? The policy says it “may” constitute prohibited solicitation, but provides no way to know for sure. That’s exactly what the vagueness doctrine prohibits.
The government might respond that “case-by-case” assessment is necessary given the variety of situations that might arise. But the Supreme Court has consistently rejected that argument when constitutional rights are at stake—especially First Amendment rights.
Count II: Unbridled Discretion (First Amendment)
The Legal Principle:
The Supreme Court has long recognized that licensing schemes giving government officials “unbridled discretion” to grant or deny permits based on speech constitute unconstitutional “prior restraints.” As the Court explained in City of Lakewood v. Plain Dealer Publishing Co. (1988), such schemes are unconstitutional even if the discretion is never actually abused, because “the mere existence of the [official’s] unfettered discretion, coupled with the power of prior restraint,” intimidates people into self-censorship.
Think of it this way: If a city required a permit to distribute newspapers, and the mayor could grant or deny permits based on whatever criteria he wanted with no standards to guide him, that would be unconstitutional even if the mayor always acted fairly. The problem is the potential for abuse and the chilling effect it creates.
The Times’ Argument:
The policy gives Pentagon officials completely standardless authority to suspend and revoke credentials based on:
- Whether officials believe journalists “pose a security or safety risk”
- Assessments made “on a case-by-case basis”
- Consideration of “the totality of the circumstances”
- Determinations “based on the unique facts and circumstances of each case”
These phrases provide zero meaningful guidance. They’re essentially instructions to “use your judgment” without any criteria for what constitutes good versus bad judgment.
Moreover, the policy allows these determinations based on constitutionally protected activities—asking questions, receiving information, and publishing stories. Even if such activities technically remain “legal,” the threat of losing access creates a powerful deterrent.
Legal Support:
City of Lakewood is directly on point. The Supreme Court held that even content-neutral restrictions on speech cannot be conditioned on “a license or permit from a government official in that official’s boundless discretion.”
Karem v. Trump applied this principle specifically to press credentials, noting that the “exercise of unbridled discretion to deny access” violates the First Amendment.
Evaluation:
This is perhaps the plaintiffs’ strongest argument. The policy literally says decisions will be made case-by-case without meaningful standards. That’s the paradigmatic example of unbridled discretion.
The government’s likely counterargument—that officials need flexibility to respond to varied circumstances—was already considered and rejected in Lakewood and Karem. The courts have consistently held that when First Amendment rights are at stake, the government must establish clear, objective criteria rather than relying on official discretion.
Count III: Unconstitutional Restrictions in Nonpublic Forum (First Amendment)
The Legal Principle:
First Amendment law recognizes different categories of government property. The Pentagon (unlike a public park) is a “nonpublic forum”—the government can limit access and impose reasonable restrictions. However, even in nonpublic forums, the government must satisfy two requirements:
- Reasonableness: Restrictions must be “reasonable in light of the purpose served by the forum”
- Viewpoint Neutrality: Restrictions cannot be designed to suppress particular viewpoints
As the Supreme Court explained in Minnesota Voters Alliance v. Mansky (2018), even nonpublic forum restrictions fail when they involve “indeterminate prohibitions” enforced with unbridled discretion.
The Times’ Argument:
The policy fails both requirements:
Not Reasonable: The Pentagon claims the restrictions serve security and safety, but the challenged provisions have no connection to building security:
- They apply to off-site newsgathering (tip lines, calling sources at home)
- They target receipt and publication of information, not physical conduct
- They weren’t prompted by any security incident
- Journalists had 80+ years of access without causing security problems
Not Viewpoint-Neutral: The implementation demonstrates clear viewpoint discrimination (more on this in Count IV). Pentagon officials explicitly praised approved journalists for lacking a “biased agenda” while denouncing excluded journalists as “propagandists” and “activists.”
Legal Support:
The complaint cites Minnesota Voters Alliance, where the Supreme Court struck down a restriction on political apparel in polling places (also a nonpublic forum) because it was too vague and gave officials standardless discretion.
More directly, Ateba v. Leavitt (D.C. Cir. 2025) recently held that “the exercise of unbridled discretion to deny access to a nonpublic forum is unreasonable.”
Evaluation:
This argument is solid. The government will struggle to explain how restrictions on off-site journalism activities serve the stated purpose of building security. If the real concern were preventing physical security risks or disruptions inside the Pentagon, the restrictions would focus on conduct within the building—not on what journalists publish or how they gather information elsewhere.
The lack of any precipitating security incident also undermines the claimed justification. If the system worked safely for 80+ years, why suddenly implement sweeping restrictions?
Count IV: Content-Based and Viewpoint-Based Discrimination (First Amendment)
The Legal Principle:
The First Amendment prohibits the government from restricting speech based on its content or viewpoint. Content-based restrictions (treating speech differently based on what it says) trigger “strict scrutiny”—the most demanding standard of constitutional review. Such restrictions are “presumptively unconstitutional” and can only survive if the government proves they’re “narrowly tailored to serve compelling state interests.”
Viewpoint discrimination (favoring one perspective over another) is even worse—the Supreme Court calls it “an egregious form of content discrimination” and essentially never allows it.
The Times’ Argument:
The policy is both content-based and viewpoint-based:
Content-Based: The policy explicitly allows suspension and revocation based on the information journalists seek, receive, and publish:
- Targeting “solicitation” of “unauthorized” information
- Considering “unauthorized disclosure” as grounds for revocation
- Distinguishing between “authorized” and “unauthorized” information based purely on content
Viewpoint-Based: The implementation reveals that the policy is being enforced to favor sympathetic outlets while excluding critical ones:
- Pentagon spokesman Sean Parnell announced “the next generation of the Pentagon press corps,” describing them as outlets that “circumvent the lies of the mainstream media and get real news to the American people”
- He called excluded journalists “activists who masquerade as journalists” and said their “reach and impact collectively are far more effective and balanced” than “self-righteous media who chose to self-deport”
- Press Secretary Kingsley Wilson praised approved journalists for “actually reach[ing] Americans, ask[ing] real questions, and don’t pursu[ing] a biased agenda,” while calling excluded journalists “propagandists who stopped telling the truth”
- When Laura Loomer (an approved journalist) posted a request for tips, Pentagon officials said it was permissible because it was “a general tip line, which is constitutionally permissible.” But The Washington Post’s tip line was deemed impermissible because it “explicitly and exclusively targets military personnel and DoW employees”—even though the Post’s tip line makes no such explicit targeting
- At the first Pentagon briefing under the new system, officials praised James O’Keefe (whose group secretly recorded a Pentagon official criticizing Trump) by saying “That’s why the work you all do is so important”
This evidence demonstrates that the policy’s application depends on whether officials approve of the journalism and the journalist’s perceived viewpoint.
Legal Support:
The complaint cites several foundational cases:
- Reed v. Town of Gilbert (2015): Content-based restrictions are “presumptively unconstitutional”
- Rosenberger v. Rector & Visitors of Univ. of Va. (1995): Viewpoint discrimination is “an egregious form of content discrimination”
- Sorrell v. IMS Health (2011): Laws that restrict speech based on content trigger strict scrutiny
Evaluation:
This is the complaint’s most powerful claim, supported by extensive smoking-gun evidence. The statements by Pentagon officials are extraordinarily damaging to the government’s case—they essentially admit that the policy is being used to exclude critical journalists (“propagandists,” “activists”) while welcoming supportive ones (“real news,” avoiding “biased agenda”).
The differential treatment of Laura Loomer’s tip line versus the Washington Post’s tip line is particularly telling. Both involve soliciting information from potential sources, but one is deemed acceptable while the other violates the policy. The only apparent difference is the journalists’ perceived political alignment.
The government will argue that it’s merely enforcing neutral security standards and that any perceived favoritism reflects which organizations agreed to follow the rules. But this argument collapses when you examine which organizations received credentials—almost exclusively pro-Trump outlets whose representatives have explicitly stated they don’t intend to investigate or critically report on the Pentagon.
Under established First Amendment doctrine, viewpoint discrimination is virtually never permissible. The government would need to show a compelling interest and narrow tailoring—a nearly impossible standard to meet, especially when the stated interest (building security) has no connection to the journalists’ off-site activities or viewpoints.
Count V: Lack of Adequate Pre-Deprivation Process (Fifth Amendment Due Process)
The Legal Principle:
The Due Process Clause requires that before the government deprives someone of a protected liberty or property interest, it must provide notice and an opportunity to be heard. The required process depends on weighing:
- The individual’s interest in avoiding the loss
- The risk of erroneous deprivation without additional procedures
- The government’s interest in summary adjudication
When the interest at stake is substantial and there’s no emergency requiring immediate action, due process typically requires pre-deprivation procedures—notice of the grounds, a chance to respond, and a statement of reasons.
The Times’ Argument:
The D.C. Circuit held in Sherrill v. Knight (1977) that White House press passes implicate liberty interests protected by the Fifth Amendment, and reaffirmed this in Karem v. Trump (2020). Pentagon credentials are equivalent—they enable journalists to perform their professional functions and implicate First Amendment newsgathering rights.
The policy allows immediate suspension of credentials without any pre-deprivation process:
- No advance notice of the grounds for suspension
- No opportunity to respond or contest the allegations
- No hearing before suspension takes effect
- Officials can act unilaterally based on their own assessment
Only after suspension (which can last indefinitely during the “process for making a final determination”) does the policy provide for written notice and a 30-day appeal period.
This violates the requirements established in Sherrill and Karem, which mandate that before denial or suspension, the government must provide “notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial.”
Legal Support:
Beyond Sherrill and Karem, the complaint cites:
- Goldberg v. Kelly (1970): Established the framework for determining required pre-deprivation process
- General due process principles requiring meaningful opportunity to be heard
Evaluation:
This argument is straightforward and well-supported by binding D.C. Circuit precedent. Sherrill and Karem directly address press credentials and explicitly require pre-deprivation process.
The government’s likely counterargument—that immediate suspension is necessary to address urgent security concerns—is undercut by:
- The policy’s application to off-site conduct that poses no immediate security risk
- The lack of any actual security incidents in the 80+ year history of press access
- The arbitrary timing (the policy wasn’t prompted by any specific security event)
The government might also argue that journalists retain post-deprivation remedies (the appeal process). But the Supreme Court has rejected this argument when pre-deprivation process is feasible, which it clearly is here. There’s no reason the Pentagon can’t provide notice and a hearing before suspending credentials, except when there’s a genuine emergency—and the policy doesn’t limit immediate suspension to emergency situations.
Count VI: Unconstitutional Condition (First and Fifth Amendments)
The Legal Principle:
The “unconstitutional conditions doctrine” holds that the government cannot condition benefits on the recipient’s agreement to give up constitutional rights. As the Supreme Court explained in Agency for International Development v. Alliance for Open Society International (2013), the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit.”
The Times’ Argument:
The policy requires journalists to sign an “Acknowledgment” stating:
“I have received, read, and understand the ‘Pentagon Reservation In-brief for Media Members’… My signature represents my acknowledgement and understanding of such [Department] policies and procedures, even if I do not necessarily agree with such policies and procedures.”
This requirement conditions press access on journalists:
- Attesting to “understanding” vague and contradictory provisions
- Acknowledging policies that misstate First Amendment standards
- Effectively agreeing to be bound by unconstitutional restrictions
While the acknowledgment includes boilerplate language stating it doesn’t waive legal rights, requiring journalists to attest to “understanding” the policy as a condition of access imposes an unconstitutional condition.
Legal Support:
- Agency for International Development: Cannot condition benefits on speech restrictions
- City of Lakewood: Cannot condition speech on standardless licensing
Evaluation:
This claim is somewhat weaker than the others because the acknowledgment includes language stating it doesn’t waive rights and only requires journalists to acknowledge “understanding” rather than agreement.
However, the plaintiffs have a colorable argument that:
- The requirement still creates a coercive effect
- Signing the acknowledgment could be used as evidence in future enforcement
- The requirement itself demonstrates the policy’s problematic nature
This count is unlikely to succeed independently but reinforces the overall pattern of constitutional violations.
Count VII: Arbitrary and Capricious Agency Action (Administrative Procedure Act)
The Legal Principle:
The Administrative Procedure Act (APA) requires courts to set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” An action is arbitrary and capricious if the agency:
- Failed to consider relevant factors or examine relevant data
- Offered explanations that lack a rational connection to the facts
- Made a decision that runs counter to the evidence
- Failed to consider obvious alternatives
- Departed from prior policy without explanation
The Times’ Argument:
The policy is arbitrary and capricious because:
No Rational Connection: The stated purpose (protecting Pentagon personnel and property from security and safety risks) has no rational connection to restrictions on:
- Off-site newsgathering activities
- Receipt and publication of information
- Journalists’ tip lines and solicitation practices
These activities pose no threat to physical security of Pentagon property or personnel.
Failure to Consider Alternatives: The Pentagon didn’t consider less restrictive alternatives, such as:
- Restricting only physical conduct within the Pentagon
- Providing clearer standards about prohibited activities
- Addressing any specific security concerns through targeted measures
Impermissible Factors: The policy’s development and implementation were influenced by impermissible considerations—specifically, viewpoint discrimination against journalists and news organizations the Pentagon disfavors.
No Precipitating Event: The policy represents a dramatic departure from 80+ years of practice, but the Pentagon hasn’t identified any incident or development that justified such a radical change.
Legal Support:
- Motor Vehicle Manufacturers Association v. State Farm (1983): Established the standard for arbitrary and capricious review
- FCC v. Fox Television Stations (2009): Agencies departing from prior policies must explain why
Evaluation:
This argument is strong, particularly the lack of rational connection between stated goals (building security) and actual restrictions (off-site journalism activities). The government will struggle to explain how a journalist’s tip line or phone calls to sources pose security risks to Pentagon property.
The lack of any precipitating event is also significant. Courts give agencies deference to change policies, but expect some reasoned explanation for departures from longstanding practice. Here, the Pentagon moved from 80+ years of open access to highly restrictive policies without identifying what changed.
The evidence of viewpoint-based implementation strongly suggests the true purpose differs from the stated justification—which courts have recognized as a hallmark of arbitrary and capricious action.
Evaluating the Evidence
The complaint relies on several categories of evidence:
Documentary Evidence
The Policy Itself: The primary evidence is the text of the policy and acknowledgment form. This is powerful evidence because it shows the constitutional problems on the face of the document:
- Explicit grants of standardless discretion
- Vague and undefined terms
- Restrictions on speech and newsgathering
- Lack of pre-deprivation procedures
This type of evidence is particularly compelling because the government cannot dispute what its own policy says.
Prior Policies: The complaint references earlier, more limited restrictions from May 2025, showing an escalating pattern of restricting press access.
Public Statements
The complaint includes extensive evidence from Pentagon officials’ public statements:
Sean Parnell’s Tweets:
- Announcing “the next generation of the Pentagon press corps”
- Praising new credential holders as circumventing “lies of the mainstream media”
- Calling excluded journalists “activists who masquerade as journalists”
- Describing excluded journalists as “self-righteous media who chose to self-deport”
Press Secretary Kingsley Wilson’s Statements:
- Praising approved journalists for “actually reach[ing] Americans, ask[ing] real questions, and don’t pursu[ing] a biased agenda”
- Calling excluded journalists “propagandists who stopped telling the truth”
- Praising James O’Keefe’s secret recording as “why the work you all do is so important”
Differential Enforcement:
- Statements that Laura Loomer’s tip line is “constitutionally permissible” while The Washington Post’s violates the policy
- Comments distinguishing between “general” versus “targeted” solicitation with no clear standard
This evidence is extremely damaging because it comes directly from the officials implementing the policy and demonstrates discriminatory intent.
Historical Evidence
80+ Years of Practice: The complaint establishes that credentialed press access to the Pentagon dates to 1942, with no significant security incidents. This undermines claims that the restrictions are necessary for security.
Examples of Important Reporting: The complaint provides examples of consequential stories that relied on the access the policy now restricts:
- Real-time coverage of the 9/11 Pentagon attack
- Recent reporting on Secretary Hegseth’s order for a lethal strike
- Coverage of Pentagon leadership changes
- Reporting on military policy changes
Contemporary Examples
Disparate Treatment: The complaint documents that among 56 Pentagon Press Association members, only one agreed to sign the acknowledgment, while the Pentagon welcomed numerous pro-Trump outlets. This shows:
- The policy is not attracting mainstream journalistic organizations
- Implementation favors sympathetic outlets
- The effect is to reshape Pentagon coverage along viewpoint lines
New Credential Holders’ Statements: Evidence that approved journalists have:
- Promised to “make [the Administration] proud”
- Described their outlets as “an industry mag/site for MAGA world”
- Stated they’re “not an investigative news organization”
This evidence demonstrates that the policy is succeeding in its apparent goal of replacing independent journalists with supportive ones.
How the Evidence Supports Each Claim
Vagueness (Count I): The policy’s text directly proves the vagueness claim by using undefined terms and providing no clear boundaries.
Unbridled Discretion (Count II): The policy’s language explicitly granting “case-by-case” discretion with consideration of “totality of circumstances” proves this claim on its face.
Unreasonable Forum Restrictions (Count III): The policy’s scope (reaching off-site conduct) combined with lack of any security incident proves unreasonableness.
Viewpoint Discrimination (Count IV): The public statements and differential enforcement provide direct evidence of discriminatory intent and application—smoking gun evidence of viewpoint discrimination.
Lack of Pre-Deprivation Process (Count V): The policy’s text explicitly allowing “immediate suspension” proves the procedural defect.
Unconstitutional Condition (Count VI): The acknowledgment requirement itself proves this claim.
Arbitrary and Capricious (Count VII): The lack of rational connection combined with evidence of improper motivation supports this claim.
The evidence is particularly strong because it includes:
- Facial evidence (the policy’s own language proves several claims)
- Admissions (officials’ statements demonstrating discriminatory intent)
- Historical evidence (showing no legitimate justification for change)
- Comparative evidence (differential treatment of similarly situated journalists)
Weaknesses and Counterarguments
While the plaintiffs’ case is strong, let me identify potential weaknesses and how the government might respond:
Potential Government Arguments
1. “No Absolute Right to Access”
Government’s Argument: The Pentagon is not a public forum. There’s no constitutional right to enter a government military facility. The government has broad authority to control access to its own property, especially sensitive defense installations.
Plaintiffs’ Response: This argument was already considered and rejected in Sherrill v. Knight and Karem v. Trump. While there’s no absolute right to a press pass, once the government creates a credentialed access system, it cannot deny or revoke credentials arbitrarily, based on viewpoint, or without due process. The D.C. Circuit has explicitly held that press credentials implicate liberty interests protected by the First and Fifth Amendments.
Evaluation: The government will lose this argument because it’s foreclosed by binding precedent. The D.C. Circuit has already addressed this issue multiple times.
2. “National Security/Military Deference”
Government’s Argument: Courts should give special deference to Pentagon judgments about security at a military facility. National security considerations warrant greater flexibility in restricting access.
Plaintiffs’ Response:
- The policy restricts off-site activities that have nothing to do with building security
- No security incident prompted these restrictions
- 80+ years of practice proves the system worked safely
- Even in the national security context, viewpoint discrimination is unconstitutional
- The policy is vastly overbroad if security is the actual concern
Evaluation: This argument has some surface appeal, but collapses on examination. If security were the real concern, the policy would focus on physical conduct within the Pentagon—not tip lines, phone calls to sources, and publication of unapproved information. The evidence of viewpoint discrimination also defeats any claim that security is the true motivation.
3. “Alternative Channels”
Government’s Argument: Journalists can still cover the Pentagon from outside the building. They can file FOIA requests, attend scheduled briefings, and communicate with officials by phone or email. The restriction on physical access doesn’t prevent coverage.
Plaintiffs’ Response:
- This argument was rejected in Karem and other press access cases
- Physical presence enables unique newsgathering opportunities (spontaneous conversations, observing official reactions, capturing atmosphere during crises)
- The policy restricts not just building access but off-site newsgathering activities
- Alternative channels don’t cure viewpoint discrimination
Evaluation: Courts have consistently rejected the “alternative channels” argument in press access cases. The First Amendment protects not just any access but meaningful access on non-discriminatory terms.
4. “Reasonable Time, Place, Manner Restriction”
Government’s Argument: The policy is a content-neutral regulation of the time, place, and manner of press access to a nonpublic forum, which is constitutional if reasonable.
Plaintiffs’ Response:
- The policy is not content-neutral—it explicitly targets information-gathering and publication based on content (authorized vs. unauthorized information)
- Implementation demonstrates viewpoint discrimination
- The policy grants unbridled discretion, which is never acceptable even for content-neutral restrictions
- The restrictions aren’t narrowly tailored to any legitimate purpose
Evaluation: This argument fails both factually and legally. Factually, the policy isn’t content-neutral. Legally, even content-neutral restrictions cannot involve unbridled discretion or viewpoint discrimination.
5. “Policy Can Be Applied Constitutionally”
Government’s Argument: Even if the policy could be misapplied, courts should construe it to avoid constitutional problems. The government will apply it only to genuine security threats.
Plaintiffs’ Response:
- Facial vagueness and overbreadth cannot be cured by promised reasonable application
- When First Amendment rights are at stake, the Court has struck down policies based on their potential for abuse, not just actual abuse
- The evidence shows the policy is already being applied unconstitutionally
- Promises of future restraint don’t cure present constitutional defects
Evaluation: The Supreme Court has repeatedly rejected this argument in First Amendment cases, holding that the opportunity for abuse and the chilling effect are themselves constitutional violations. City of Lakewood explicitly rejects the government’s ability to salvage an unconstitutional licensing scheme by promising to use it properly.
Logic Gaps and Inconsistencies in the Policy
Several internal contradictions weaken the government’s position:
1. Security vs. Speech
The policy claims to address security concerns but primarily restricts speech and newsgathering activities. If security were the real concern, restrictions would focus on physical conduct within the building.
2. Building Security vs. Off-Site Activity
The policy invokes authority to protect Pentagon property but regulates activity occurring entirely off Pentagon grounds (tip lines, phone calls, publication decisions).
3. Solicitation Double Standard
The policy treats identical solicitation activities differently based on the journalist’s perceived viewpoint (Loomer’s tip line vs. Washington Post’s tip line).
4. “Understanding” Requirement
The policy requires journalists to attest to “understanding” provisions that are admittedly vague and standardless. How can journalists understand standards that don’t exist?
5. “May” Language
The repeated use of “may” throughout the policy (conduct “may” constitute solicitation, determinations “may” result in suspension) makes the policy even more vague and unpredictable.
Likely Outcome: Who Will Prevail?
Based on the legal analysis, evidence, and precedent, the plaintiffs are highly likely to prevail, probably at the preliminary injunction stage.
Probability Assessment: 85-90% likelihood of plaintiffs’ success
Reasoning:
1. Binding Precedent
Sherrill v. Knight (1977) and Karem v. Trump (2020) are binding D.C. Circuit precedents directly addressing press credentials. The district court must follow these cases, which establish that:
- Press credentials implicate First and Fifth Amendment rights
- Denial or revocation must follow clear standards
- Pre-deprivation process is required
- Arbitrary or viewpoint-based decisions are unconstitutional
The current policy violates every one of these requirements.
2. Multiple Independent Grounds for Relief
Plaintiffs need to prevail on only one of their seven claims. Several claims are independently sufficient:
- The viewpoint discrimination evidence alone (Count IV) could invalidate the policy
- The vagueness claim (Count I) is also independently sufficient
- The unbridled discretion claim (Count II) is independently sufficient
- The due process claim (Count V) is independently sufficient
The government must win on all seven claims to defend the policy.
3. Smoking Gun Evidence
The public statements by Pentagon officials provide direct evidence of discriminatory intent that would be difficult to obtain in most cases. Courts rarely see such explicit admissions of viewpoint-based motivations.
4. No Compelling Justification
The government will struggle to articulate any compelling interest (required for strict scrutiny) for restrictions on off-site journalism activities. National security cannot justify viewpoint discrimination or restrictions unrelated to actual security.
5. Clear Irreparable Harm
Loss of First Amendment rights constitutes irreparable harm per se, satisfying the preliminary injunction standard.
6. Strong Public Interest
The public interest strongly favors press access to the Pentagon, especially given the institution’s importance to national security and democratic accountability.
7. Historical Practice
The 80+ year history of credentialed press access without significant security incidents undermines any claim that the restrictions are necessary.
Timing
This case will likely be resolved relatively quickly:
Short term (within weeks):
- Plaintiffs will file a motion for preliminary injunction, probably simultaneously with or shortly after the complaint
- The court will schedule an expedited hearing on the preliminary injunction
- Given the First Amendment issues and binding circuit precedent, the court will likely rule quickly
Medium term (3-6 months):
- If plaintiffs obtain a preliminary injunction (as expected), the government will have several options:
- Appeal to the D.C. Circuit (where they’ll likely lose)
- Attempt to revise the policy to address constitutional defects (difficult given the fundamental problems)
- Move to dismiss (unlikely to succeed given precedent)
- Negotiate a settlement
Longer term:
- If the case proceeds on the merits, discovery would focus on:
- The policy’s development and motivation
- Communications between Pentagon officials about implementing the policy
- The criteria actually used to grant/deny credentials
- Any security incidents or concerns that prompted the policy
However, the case is unlikely to reach full merits litigation because the legal issues are clear and the precedent is binding.
What Success Looks Like for Each Side
For Plaintiffs:
- Court declares key provisions unconstitutional
- Court enjoins enforcement of those provisions
- Plaintiffs regain their credentials
- Precedent reinforces protections for press access
For Defendants:
- Court upholds policy as constitutional (unlikely)
- Or, court requires only minor modifications
- Ability to maintain some restrictions on press access
- Discretion over credential decisions
What Happens Next: Immediate Next Steps
For Plaintiffs
1. Motion for Preliminary Injunction
The Times will immediately file (or has already filed) a motion for preliminary injunction seeking court order requiring the Pentagon to:
- Stop enforcing the challenged provisions
- Reinstate the plaintiffs’ credentials
- Allow access pending final resolution
To obtain a preliminary injunction, plaintiffs must show:
- Likelihood of success on the merits (✓ strong)
- Irreparable harm (✓ loss of First Amendment rights)
- Balance of equities favors plaintiffs (✓ clear)
- Public interest favors injunction (✓ strong)
2. Expedited Discovery
Plaintiffs will seek limited, expedited discovery on:
- The policy’s development and motivation
- Communications between officials about implementation
- Criteria for granting/denying credentials to new applicants
- Any security incidents or concerns
3. Public Advocacy
The Times will continue reporting on the issue and the litigation, potentially generating additional public pressure and evidence of the policy’s effects.
For Defendants
1. Oppose Preliminary Injunction
The government will file an opposition brief arguing:
- No likelihood of success on merits
- No irreparable harm (alternative access to Pentagon)
- Balance of equities favors government (security concerns)
- Public interest in security
This opposition will likely fail for reasons discussed above.
2. Consider Options if Injunction Granted
The government will face difficult choices:
Option A: Appeal
- Appeal to D.C. Circuit seeking stay of injunction
- Likely to lose given circuit precedent
- Could appeal further to Supreme Court (unlikely to grant review)
Option B: Revise Policy
- Attempt to cure constitutional defects
- Difficult because problems are fundamental, not just technical
- Would need to:
- Provide clear, objective standards
- Eliminate discretion
- Remove provisions targeting off-site newsgathering
- Eliminate viewpoint discrimination
- Provide pre-deprivation process
Option C: Settlement
- Negotiate resolution with plaintiffs
- Possibly reinstate traditional credentials system
- Avoid establishing adverse precedent
Option D: Abandon Policy
- Recognize the policy cannot be defended
- Return to prior practice
- Avoid protracted litigation
3. Defend Against Discovery
The government will likely resist discovery requests, claiming:
- Executive privilege
- Deliberative process privilege
- National security concerns
However, given the evidence of discriminatory intent, courts will likely allow substantial discovery.
Court Proceedings
Preliminary Injunction Hearing
- Likely scheduled within 2-4 weeks of motion filing
- Judge will hear oral arguments
- May take evidence on contested factual issues
- Will likely rule from bench or issue decision shortly after hearing
If Injunction Granted
- Takes effect immediately
- Government must reinstate credentials
- Government can appeal but must seek stay from appellate court
If Injunction Denied (unlikely)
- Case proceeds on regular schedule
- Plaintiffs may seek immediate appeal
- Plaintiffs continue without credentials pending final resolution
Broader Implications for Society and Politics
This case raises profound questions about the relationship between press and government in American democracy. The outcome will have far-reaching implications.
Constitutional Principles at Stake
1. Press Freedom and Democratic Accountability
The case tests whether the government can effectively exclude independent journalists from covering critical institutions. The Pentagon oversees the world’s most powerful military, with a budget exceeding $800 billion annually. The American public depends on journalists to provide independent information about:
- Military operations and their human costs
- Defense spending and procurement decisions
- Leadership decisions affecting national security
- Military readiness and capabilities
- Treatment of service members
- Civilian control of the military
If the government can exclude journalists whose reporting it dislikes, democratic accountability suffers. The public receives only officially approved information, which may omit failures, controversies, and dissenting views within the military establishment.
2. Historical Norms and Institutional Stability
The policy represents a dramatic departure from 80+ years of practice. This raises questions about how easily administrations can overturn longstanding norms:
- Can each administration reshape press access based on partisan preferences?
- Do historical practices create legitimate expectations that limit government discretion?
- What prevents future administrations from applying similar restrictions to other agencies?
3. Viewpoint Discrimination in Government Access
Perhaps most fundamentally, the case asks whether government can favor sympathetic media over critical media. If the Pentagon can grant credentials based on journalists’ perceived viewpoints, then:
- Other agencies could do likewise (White House, State Department, Congress)
- State and local governments could follow suit
- Access becomes a tool for rewarding friendly coverage and punishing criticism
This would fundamentally transform the press-government relationship from one of healthy tension to one of patronage.
Implications for Journalism
Impact on National Security Reporting
If the policy stands, national security journalism will fundamentally change:
Reduced Investigative Reporting: Journalists will be less willing to investigate Pentagon matters if doing so costs them access. Stories about military failures, leadership problems, or policy controversies become harder to report.
Chilling Effect on Sources: Pentagon employees will be less willing to speak with journalists if doing so could cost the journalist their credentials. This cuts off vital information channels.
Self-Censorship: News organizations may pull punches in their Pentagon coverage to maintain access, leading to less aggressive accountability journalism.
Shift to Approved Sources: Without access, journalists become more dependent on official briefings and approved spokespeople, reducing independent verification.
Example: Consider the December 1, 2025 story the Times reported about Secretary Hegseth’s directive for a lethal strike in the Caribbean. This story relied on five U.S. officials speaking on condition of anonymity. Under the Pentagon’s policy, efforts to gather this information could be deemed “solicitation” warranting credential revocation. Would such stories still be reported if doing so costs journalists their Pentagon access?
Broader Media Landscape Effects
The policy could accelerate troubling trends in media:
Polarization: If government agencies favor ideologically aligned media, it reinforces partisan media bubbles rather than a shared factual basis for democratic debate.
Erosion of Institutional Media: Traditional journalistic organizations (with their editorial standards, fact-checking, and ethical guidelines) get replaced by partisan outlets with lower journalistic standards.
Loss of Expertise: National security reporting requires specialized knowledge and relationships built over years. Driving out experienced journalists like Julian Barnes (who has covered the Pentagon for 20+ years) deprives the public of expert coverage.
Political Implications
Partisan Weaponization of Access
The policy establishes a blueprint for partisan control of government coverage:
Current Administration: Welcomes pro-Trump outlets while excluding mainstream media critical of administration policies.
Future Administrations: If this approach is validated, future Democratic administrations might exclude conservative media while favoring progressive outlets. Republican administrations might expand the approach to other agencies.
Tit-for-Tat Escalation: Each party, when in power, could use access restrictions as a weapon against opposing media, creating escalating cycles of press restriction.
State and Local Replication: State governments and local agencies might adopt similar policies, restricting access to favored media.
Precedent for Other Government Institutions
The Pentagon as Test Case
If the policy survives legal challenge (unlikely), it establishes that government can:
- Condition access on viewpoint
- Use vague standards to grant/deny credentials
- Immediately suspend access without due process
- Regulate off-site journalism activities
This would affect other institutions:
White House: Could expand existing restrictions on press access Congress: Could implement credential systems favoring sympathetic journalists Courts: Could restrict press access to proceedings State Department: Could condition foreign correspondent credentials on viewpoint Federal Agencies: Could implement similar policies across government
Impact on Public Trust and Information
Quality of Public Debate
Democracy requires informed citizens making decisions based on reliable information. When government restricts independent journalism:
Information Gaps: Important stories don’t get reported or get reported only from the government’s perspective.
Reduced Fact-Checking: With fewer independent journalists, official claims face less scrutiny.
Echo Chambers: The public receives information filtered through partisan lenses rather than independent editorial judgment.
Erosion of Trust: When the public learns (as it inevitably does) that access is granted based on viewpoint, it erodes trust in both government and media.
Historical Parallel
The Pentagon Papers case (1971) provides an instructive parallel. The Times published classified documents revealing government deception about the Vietnam War. The Nixon administration sought to prevent publication, arguing national security required secrecy.
The Supreme Court rejected the government’s argument, establishing that:
- Press freedom includes publishing information the government wants kept secret
- Government cannot use prior restraints except in extraordinary circumstances
- The public’s right to know outweighs government preference for secrecy
Justice Hugo Black wrote in his concurrence: “The press was to serve the governed, not the governors… The press was protected so that it could bare the secrets of government and inform the people.”
The current policy represents an indirect route to the same goal the government failed to achieve in the Pentagon Papers case—control over what the press reports about the Pentagon. Rather than seeking prior restraints on publication, the government conditions access on reporting only approved information.
Global Implications
International Precedent
How the U.S. handles press freedom affects global norms:
Authoritarian Playbook: Authoritarian governments often restrict press credentials to favored outlets while excluding critical journalists. If the U.S. adopts this approach, it provides cover for authoritarian practices worldwide.
Democratic Backsliding: The policy fits a pattern of democratic backsliding where elected governments use facially neutral rules to restrict independent media.
U.S. Credibility: American criticism of press restrictions in China, Russia, or other countries rings hollow if the U.S. Pentagon excludes critical journalists.
Example: When the U.S. criticizes China for restricting foreign journalists’ access or Russia for shutting down independent media, those governments can point to the Pentagon policy as evidence of American hypocrisy.
Constitutional Moment
This case represents what constitutional scholars call a “constitutional moment”—a test of whether established legal principles will be enforced against government overreach.
The resolution will determine:
- Whether First Amendment protections are real or merely theoretical
- Whether courts will enforce constitutional limits on executive authority
- Whether 80+ years of practice matter when government seeks to change them
- Whether viewpoint discrimination will be tolerated or condemned
If plaintiffs prevail (as expected):
- Courts reaffirm that constitutional principles limit government power
- Press freedom protections remain robust
- Historical practices are respected
- Viewpoint discrimination is rejected
- Democratic accountability mechanisms are preserved
If government prevails (unlikely):
- Government gains greater control over press coverage
- Constitutional protections are weakened
- Historical practices can be easily overturned
- Viewpoint discrimination becomes acceptable
- Democratic accountability suffers
Conclusion: The Larger Stakes
While this case involves technical legal questions about press credentials, vagueness doctrines, and nonpublic forums, the underlying issues are profound. The case is ultimately about whether American democracy will maintain the “healthy adversarial tension between the government, which may seek to keep its secrets, and the press, which may endeavor to report them” (as the complaint quotes from Alexander Bickel).
The Pentagon policy represents an attempt to transform that adversarial relationship into something more compliant—a press corps that reports what the government approves rather than what independent journalism uncovers. The legal challenge asks courts to prevent that transformation.
Given the strong legal arguments, compelling evidence, and binding precedent, the plaintiffs are highly likely to prevail. But the case’s significance extends far beyond the immediate parties. The outcome will help determine what kind of press-government relationship America will have in the 21st century—whether independent journalism can hold powerful institutions accountable, or whether government access will be conditioned on favorable coverage.
For the American public, the stakes are clear: Will they receive independent information about military operations, defense policies, and Pentagon leadership? Or will they receive only officially approved information from outlets the Pentagon favors? The answer to that question affects not just press freedom, but democratic accountability itself.