Journalists have no First Amendment right to cover American military operations. The amount of press access and the extent to which press reports are subject to military censorship depend upon the attitudes of the president, secretary of defense, and military commanders in the field. Over the course of American military history, press access has varied considerably.
The greatest amount of press access to military operations occurred during the Vietnam War. Accredited journalists were generally permitted to travel with troops and their reports were not subject to military censorship. Many military officials, however, believed the largely unrestricted press coverage in Vietnam turned American public opinion against the military. Consequently, in the 1983 invasion of Grenada, reporters were excluded from the invasion force. Similarly, during the 1991 Persian Gulf War, journalists were largely kept away from scenes of breaking news and their reports were subject to military censorship. During the 2003 invasion of Iraq, though, nearly seven hundred journalists were ‘‘embedded’’ or placed within military units. The Pentagon allowed this extensive access to shape public opinion about the war and counter Iraqi claims of American atrocities. As in other wars, journalists agreed to follow a lengthy set of ground rules to protect troop safety. For example, embedded reporters agreed not to report information about tactics or specific numbers of troops and equipment.
Press organizations have rarely challenged limits on access to military operations and facilities. The few challenges that have occurred have been unsuccessful; no court has ruled unconstitutional a Pentagon policy limiting access to combat operations or facilities. Judicial support for a First Amendment right to gather information in military settings has merely been in the abstract; some courts have suggested that this right could be recognized in an appropriate case in the future. Other courts, however, have ruled that the Pentagon is under no obligation to open military operations to the press. Consequently, press access remains at the discretion of government officials.
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the U.S. Supreme Court ruled that the public had a First Amendment right to attend criminal trials. The Court found that there was a longstanding tradition of open judicial proceedings and the presence of the public enhanced the integrity of trials. In Pell v. Procunier, 417 U.S. 817 (1974), however, the Court held that the press is not entitled to information unavailable to the public. In JB Pictures, Inc. v. Department of Defense, 86 F.3d 236 (D.C. Cir. 1996), a restriction on public access to a military base was upheld because military bases do not share the tradition of openness of courtrooms. Moreover, the restriction on public access, like that in Pell, applied equally to the press and the public.
In Flynt v. Rumsfeld, 355 F.3d 697 (D.C. Cir. 2004), a federal appellate court upheld restrictions on press access to American military forces operating in Afghanistan. The appellate court noted that military battlefields, unlike trials, have not been traditionally open to the public. ‘‘There is nothing we have found in the Constitution, American history, or our case law’’ to support the claim that the press has a First Amendment right to accompany troops into combat, the appellate court wrote. Similarly, in Getty Images News Services v. Department of Defense, 193 F. Supp. 2d 112 (D.C. 2002), a federal district judge upheld U.S. military restrictions on press access to prisoners held as ‘‘unlawful combatants’’ at the Guantanamo Bay Naval Base. In light of the ‘‘unique military context,’’ the court held that press access to the prisoners was not guaranteed by the First Amendment. However, if the military granted some members of the press access to the facility, the selection procedures must be reasonable, the court wrote.
WILLIAM E. LEE
References and Further Reading
Cases and Statutes Cited
See also Guantanamo Bay, enemy Combatants, Post 9/11