Judge Strikes Down Updated Policy Restricting Journalists’ Access to Pentagon

A federal judge has found that an interim Department of Defense (DOD) policy — which replaced a similar policy that sought to restrict journalists’ access to Pentagon sources earlier this year — violates First Amendment press freedoms and is therefore unlawful and unenforceable.

The original policy had restricted journalists by barring them from entering the Pentagon and speaking with employees unless they agreed not to publish articles that relied on confidential sources within the department, or to share those sources’ names with the DOD. After federal District Judge Paul L. Friedman found that rule to be unconstitutional, the Pentagon enacted a new, interim policy that was similar in scope.

The interim policy excluded all journalists from entering the building, revoking their access to a Pentagon office traditionally used by journalists and instead housing them in an annex outside the Pentagon. Under the new policy, journalists would only be allowed to enter the building if they were escorted by an official within the DOD. The new policy also sought to make the credentialing process stricter.

Last week, news organizations that had sued against the implementation of the original policy — including The New York Times — sought to end the new one, arguing that it included essentially the same restrictions that Friedman had ruled were unconstitutional. In an updated order, Friedman announced that he agreed with that assessment, finding that the Pentagon’s interim policy was also illegal.

Friedman cited a remark by a senior adviser to Secretary of Defense Pete Hegseth to demonstrate that the two policies were essentially the same. “We used more words to say the same thing and to foreclose creative misinterpretations” of the original restrictive policy, Timothy Parlatore, senior adviser to Hegseth, said shortly after the interim order went into play.

The Pentagon Facility Alternate Credentials (PFACs) process that was deemed unconstitutional was simply re-tried under this so-called interim policy, the judge wrote in his new order.

The interim order continues to “impos[e] restrictions on PFAC holders that forbid them from entering the main Pentagon building without prior approval and an escort” in violation of the original order, Friedman said.

In addition to finding the new order unconstitutional, Friedman also ordered the DOD to “file a status report” by the middle of this week “describing the steps taken to ensure compliance” with his mandates.

The New York Times praised Friedman’s latest decree finding the DOD’s restrictions unlawful.

“Today’s decision upholds our constitutional rights again and sends a clear message to the Pentagon. Compliance with a lawful order of a court is not optional; it is required in a democracy committed to the rule of law,” said Times spokesperson Charlie Stadtlander.

“This ruling powerfully vindicates both the Court’s authority and the First Amendment’s protections of independent journalism,” said Theodore Boutrous Jr., a lawyer representing the Times in its suit against the policy.

The Pentagon announced that it is planning to appeal the decision on both policies.

In a statement heralding the ruling, Freedom of the Press Foundation (FPF) Chief of Advocacy Seth Stern said more action from the judge was needed to ensure compliance from DOD.

“We appreciate Judge Friedman seeing the Pentagon’s revised policy for the nonsense it is and granting The New York Times’ motion. The Constitution, of course, allows and encourages journalists to ask questions to anyone they want, authorized or unauthorized, and to publish the answers they get,” Stern said. “But at this point, any court order that responds to the administration’s blatant lawlessness with anything less than sanctions, contempt of court findings, and attorney disciplinary referrals is a disappointment.”