The Trump administration continues to lose in federal court on First Amendment cases.
In the most recent case, a federal judge ruled that a Pentagon policy restricting news outlet access violates the First Amendment, handing a win to The New York Times. The Times sued last December after a new policy was implemented requiring reporters to sign a document acknowledging several vague restrictions that could result in their press pass being revoked. The policy stated that reporters could be denied access if it was determined they committed any kind of “unprofessional conduct that might serve to disrupt Pentagon operations” and “actions other than convictions may be deemed to pose a security or safety risk.”
The Reporters Committee for Freedom of the Press sought clarification. After receiving a response about the terms, the Times and other media organizations said the policy was “incompatible with the First Amendment and responsibility of members of the press.” Reporters who had worked at the Pentagon for years under more than one administration said they could not sign it.
After they left, the Pentagon granted press badges to paid social media influencers and activists, including those unaffiliated with any news organization. Pentagon spokespeople also regularly made comments in public and in social media posts stating the reporters who left were “activists who masquerade as journalists,” “self-righteous media,” and “propagandists” who “continue to lie.” The administration also argued its policy wasn’t vague and that it could decide who was a security risk or not.
The Times sued, arguing the policy violated the First and Fifth Amendments. Judge Paul Friedman, of U.S. District Court for the District of Columbia, agreed, ordering the Pentagon to restore the press passes of seven Times journalists.
In his 40-page ruling, Friedman regularly chastised the Pentagon. “In sum, the Policy on its face makes any newsgathering and reporting not blessed by the Department a potential basis for the denial, suspension, or revocation of a journalist’s PFAC. It provides no way for journalists to know how they may do their jobs without losing their credentials. The Policy therefore is vague in violation of the Fifth Amendment,” he said.
Friedman also cited multiple court rulings that state the government cannot legally regulate speech based on its content and “viewpoint discrimination is an ‘egregious form of content discrimination.’ … The record is replete with undisputed evidence that the Policy is viewpoint discriminatory. That evidence tells the story of a Department whose leadership has been and continues to be openly hostile to the ‘mainstream media’ whose reporting it views as unfavorable, but receptive to outlets that have expressed ‘support for the Trump administration in the past."”
The Pentagon has said it plans to appeal the ruling.
This ruling came after others issued by Judge Royce Lamberth of the U.S. District Court for the District of Columbia, including one last week ordering more than 1,000 full-time journalists and support staff at Voice of America to return to work by March 23. Nearly all VOA staff had been on paid leave since last March. His decision reversed a presidential executive order directing VOA to be closed. Because Congress established, VOA only Congress can shut it down, the judge ruled.
He also said, “Congress has identified particular countries to which broadcasting must be directed” and radio broadcasts must be transmitted to particular areas of the world including during foreign crises. Instead, VOA’s director, Kari Lake, “repeatedly thumbed her nose” at statutory requirements and “the defendants are unlawfully withholding mandatory agency action.”
This was after he previously ruled that any decisions Lake made were illegal because she had not been confirmed by the U.S. Senate.
Lambreth’s most recent ruling repeatedly chastised the administration, stating “the defendants have made no effort to defend the merits of the downsizing decision” and “do not dispute key facts demonstrating that they are in violation of these provisions.”
The administration is expected to appeal the ruling.
In New York, Judge Arun Subramanian with the U.S. District Court for the Southern District of New York ruled in favor of Columbia University students and anti-Israel activists. They sued, arguing the Trump administration unlawfully coerced the university to suppress their protected speech. In an amended complaint, the students argued members of Congress violated their First Amendment rights, employees working for the departments of Justice, Education and Health and Human Services violated the Administrative Procedures Act, and Columbia officials were in breach of contract.
Subramanian agreed that the first claim warranted discovery, dismissed the APA claim as moot and dismissed claims against Columbia with prejudice. The ruling allows the case to go forward.