Does the Pentagon’s Media Policy Violate the First Amendment?

A new, revised Pentagon media policy is raising First Amendment concerns from free press advocates and news organizations over what they have characterized as an attack on protected newsgathering activity.

The policy became an issue of heated debate this week with a growing list of news organizations, including conservative outlets, declining to sign the media policy and the White House and Pentagon firing back.

President Donald Trump and Defense Secretary Pete Hegseth weighed in on the matter during a White House event on Oct. 14, with Trump saying, "It bothers me to have soldiers and even, you know, high-ranking generals walking around with you guys on their sleeve."

The Pentagon Press Association said there was no need for the "battle" between the press and the administration over the policy and asking journalists to sign it.

"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," the organization said.

Here's what to know about the new policy and its potential First Amendment implications.

What does the policy say?

The Pentagon first issued guidance in September that said reporters could lose their press access by attempting to obtain or publish information not authorized for public release. A new version released Oct. 6 said reporters who "solicit" information not approved for public release could lose their credentials.

The policy says receiving and publishing unsolicited information, including classified information, is "generally protected by the First Amendment and would not, on its own, normally trigger denial, revocation or non-renewal" of credentials. Seeking out such information from department personnel, however, could result in journalists being labeled a "security or safety risk."

The policy says solicitation would include, for example, a social media post by a journalist or news outlet that "directly targets [Department of War] personnel to disclose non-public information without proper authorization."

It goes on to say decisions on violations will be made "on a case-by-case basis," considering the full context of the incident in question, to "safeguard sensitive information without unduly restricting speech."

Does it violate the First Amendment?

Clay Calvert, a nonresident senior fellow at the American Enterprise Institute, said it's unclear whether the policy itself violates the First Amendment, though he said its provisions work to "hamstring journalistic independence."

"Access to information is the chokepoint for journalism," Calvert said. "If you can control access to information, you can control journalism."

Freedom Forum Vice President Kevin Goldberg, a First Amendment attorney and expert, also said it's "not 100% clear" whether the policy violates the First Amendment but said it's likely the matter will end up in court.

While he said both Democratic and Republican administrations have sought to control press access and shape news coverage in recent decades, requiring outlets to sign an agreement like the one presented by the Pentagon is "something completely new."

"We're not talking about information that violates the law here, and reporters have the right to ask questions and request information and request explanations about unclassified information," Goldberg said.

But Seth Stern, director of advocacy at the Press Freedom Foundation, said the policy is "highly unconstitutional" and rejected the Pentagon's claims of national security risks.

"A free press that does its job is an asset to national security, not a liability," he said.

He referenced Watergate and the Pentagon Papers as examples of journalists doing a public service by exposing government lies and cover-ups.

"Any number of landmark stories that they make movies about — these are not stories that landed on people's laps," he said. "These are stories that people worked to get and involved reporting that would be prohibited by this Pentagon policy if journalists were to agree to it."

Are there other cases of media access becoming a First Amendment issue?

It's not the first time First Amendment questions have been raised in response to actions by presidential administrations toward the news media.

Both NPR and PBS cited the First Amendment in their respective lawsuits against the Trump administration over its successful effort to revoke their federal funding.

The Associated Press also sued the administration after its journalists were banned from the Oval Office and Air Force One over the outlet's refusal to use "Gulf of America" instead of "Gulf of Mexico" following Trump's executive order renaming the body of water.

During Trump's first term, the White House revoked former CNN reporter Jim Acosta's press pass after a heated exchange between Acosta and Trump in a 2018 news conference. The White House later restored Acosta's credentials, prompting CNN to drop its federal lawsuit against the administration over the incident.

Democratic administrations also have battled with the media over access and coverage.

For instance, former President Barack Obama's administration had a contentious relationship with Fox News. Among the incidents was the administration's attempt to exclude Fox News from interviewing compensation czar Kenneth Feinberg alongside four other networks in 2009. The White House said it based its decision on "some of [Fox News'] coverage and ... the fairness of that coverage."

The plan was abandoned after the other networks — ABC, CBS, CNN and NBC — refused to participate in the interview if the outlet wasn't included, Fox News reported.

How are news outlets responding?

One America News was the only outlet that had said it would sign the Pentagon agreement as of Oct. 13, according to The Washington Post.

Dozens of news organizations said their reporters did not sign the new policy. Those include The New York Times, The Washington Post, The Wall Street Journal, USA TODAY, Reuters and The Associated Press.

ABC News, CBS News, CNN, Fox News and NBC News said in a joint Oct. 14 statement the policy is "without precedent and threatens core journalistic protections."

A number of prominent conservative media also declined to sign. Those include Newsmax, The Washington Times and the Washington Examiner.

Calvert said the "solidarity and united front" among news organizations has an intangible effect, even if the policy remains in place.

"The symbolism here that the watchdog press is not going to turn into a lapdog, that's really what's important," he said.

The Pentagon policy follows other Trump administration efforts to put pressure on certain industries, Calvert said, such as its request for universities to sign a compact in exchange for preferential treatment with federal funding and executive orders directed at private law firms.

An array of law firms subsequently struck deals with the administration, but Calvert said history will reflect well on the news organizations that "didn't just cave."

What has the Pentagon said about the backlash?

Pentagon spokesperson Sean Parnell said on Oct. 14 that media outlets had previously "expressed their gratitude for our efforts."

"Yet at the last minute, they have decided to move the goal post and refuse to sign the policy because of a single issue: a line that says they 'understand' what our policies are," Parnell said.

The policy requires reporters to acknowledge, not agree with, the Pentagon's policies, he said.

Trump said at the White House event that he had spoken with Hegseth about the policy.

Trump said he was concerned Pentagon personnel who aren't used to interacting with the news media could "make a mistake, and a mistake can be tragic."

Hegseth, who responded to several news outlets' posts on social media about declining to sign the agreement with a waving hand emoji, criticized the Pentagon press corps for what he described as a lack of attention to Trump's Middle East peace deal in favor of "a policy about them."

"It's commonsense stuff, Mr. President," Hegseth said. "We're trying to make sure national security is respected and we're proud of the policy."

BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her at [email protected]

The USA TODAY Network's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.