Pentagon Journalist Escort Requirement Can Continue Pending D.C. Circuit Decision

From yesterday’s decision in N.Y. Times Co. v. U.S. Dep’t of Defense, by Judges Karen LeCraft Henderson and Patricia Millett, which stayed a lower court order that had blocked the policy:

[O]n the record before us, [the government defendants-Appellants] are likely to succeed on their argument that [the] generally applicable escort requirement does not constitute a “sufficiently adverse action to give rise to an actionable First Amendment claim” of retaliation. [Plaintiffs-Appellees] have not argued that the escort requirement is not, in fact, generally applicable and applied across the board to all reporters. Nor have they argued that the policy is not being implemented evenhandedly. Neither have they contended that the policy has a distinctively adverse impact on them or their news reporting ability that is different from the policy’s effect on all other covered reporters.

In addition, neither Appellees nor the dissenting opinion cite a single case supporting their conclusion that this neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact on Appellees can, without more, constitute retaliation under the First Amendment. Finally, Appellees’ claims that the escort requirement is unlawful for reasons other than retaliation have not been raised before us as a basis for denying the stay.

The court also set the case for expedited oral argument. Judge Bradley Garcia dissented:

In October 2025, the Department of Defense adopted a new, restrictive policy governing credentials for journalists at the Pentagon. The New York Times and its reporter Julian Barnes sued, and the district court issued an injunction. Within days, the Department announced a new policy that, among other things, required credentialed reporters to be escorted at all times while on Pentagon grounds. The Times and Barnes moved to compel compliance, arguing that the escort requirement ran afoul of the district court’s order. The district court granted that motion. This court—based on my vote and Judge Walker’s—granted the government’s request for a limited stay pending appeal because the district court’s original injunction “did not address” the later-imposed escort requirement and “the district court did not hold that the escort requirement independently violates” the Constitution.

The district court has now assessed the lawfulness of the escort requirement. The Times and Barnes filed a separate lawsuit directly challenging the new policy. The district court preliminarily enjoined the policy’s escort requirement after determining that “it was issued to retaliate against the plaintiffs for exercising their constitutional rights.”

The district court found all three elements of a First Amendment retaliation claim satisfied: (1) The plaintiffs engaged in “activity protected under the First Amendment,” (2) the escort requirement is an “adverse action that would deter persons of ordinary firmness from exercising their First Amendment rights,” and (3) there was a causal link between the plaintiffs’ protected activity and the imposition of the escort requirement….

[R]elying on declarations from affected reporters, former Department officials, and other record materials, the district court concluded that the escort requirement “inescapably burdened” the plaintiffs’ journalistic work. Specifically, it dramatically reduced their practical ability to access the premises and rendered informal and spontaneous interactions with government sources difficult if not impossible. As the district court observed, the requirement thus “made it exceedingly challenging to … cover the Department and the U.S. military from Pentagon grounds.”

And for the causal link, the district court found “evidence of retaliatory motive” in “myriad statements by Department officials expressing disdain for reporting by The Times and other ‘legacy’ media outlets” starting “shortly after the confirmation of Secretary Hegseth and continuing through the present.” Those “hostile” statements, coupled with the Pentagon’s shifting and “facially dubious” rationales for imposing the escort requirement, demonstrated that the requirement would not have been adopted but for the plaintiffs’ protected First Amendment activities….

The majority’s decision to grant the stay apparently rests on the proposition that a policy like the escort requirement cannot constitute an adverse action if it is “generally applicable” on paper and in practice. But the majority cites no binding precedent for that proposition, and none exists. We have never held that a government policy cannot constitute unconstitutional retaliation simply because it is evenhanded. And such a holding would likely be incorrect. We have emphasized that the adverse-action inquiry poses a relatively low bar. This element is meant to screen out claims based on government actions so minor they would not “inhibit an ordinary person from speaking.”

If threatening to impose a requirement like the escort requirement on one journalist would (as the district court found) sufficiently chill his speech, it makes little sense to suggest that effect evaporates if the government threatens to impose the same requirement on all reporters. Indeed, the chilling effect on a speaker with any regard for his peers may be amplified. Perhaps a policy that places a speaker at a unique disadvantage would be even more chilling in certain circumstances. But a retaliatory government policy should not be immunized simply because it is broadly and evenly applied.