Special Investigations

Press Freedom Defense Fund

Pentagon Wants It to Be Illegal for Reporters to Ask “Unauthorized” Questions

The Trump admin wants to criminalize a key part of journalists doing their jobs — a broadside attack on a free press.

A judge last week struck down the Pentagon’s restrictions on journalists seeking “unauthorized” information, siding with the New York Times in its lawsuit against the government. In response, the Pentagon on Monday added some meaningless window dressing and essentially reissued the same restrictions. The administration pledged to “immediately” appeal the decision on the original policy, and on Tuesday, the Times filed a motion to compel the administration to comply with the judge’s order. 

As alarming as the Pentagon’s antics are, the Times’ lawsuit is not the only case about whether reporters have the right to ask questions. It’s not even the only one in the news this week. 

In 2017, police in Laredo, Texas, arrested citizen journalist Patricia Villarreal under an obscure and never previously used law making it a felony to ask government employees for nonpublic information for personal benefit. Her supposed crime was asking a police officer about two local tragedies — a suicide and a deadly car wreck.

Her arrest was widely ridiculed, and a judge quickly threw out the charges. When Villarreal sued over her arrest and mistreatment by officers, the legal question wasn’t whether the charges against her were permissible but whether they were so obviously bogus that she could overcome qualified immunity, the unjust and expansive legal shield that protects government employees from liability for all but the most blatant violations. That issue went to the Supreme Court twice, but on Monday, the Court declined to review a federal appellate court’s ruling that the officers were shielded from liability. 

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No matter what our severely compromised Supreme Court thinks, the local cops who arrested Villarreal were embarrassingly ignorant of the Constitution. But they were also ahead of their time: The Department of Justice is making the same claims that turned the Laredo police into a First Amendment laughingstock — that reporters simply asking questions to the government is criminal — to federal district Judge Paul Friedman. 

Most discussion of the Pentagon’s restrictions has focused on their conditions for reporters to receive press credentials, which the Pentagon says can be revoked if reporters publish “unauthorized” information. That policy is wildly unconstitutional on its own, and every mainstream outlet gave up their press passes rather than sign on, leaving war coverage inside the Pentagon to the likes of Turning Point USA’s Frontlines and MyPillow CEO Mike Lindell’s LindellTV streaming service. 

But the Pentagon’s legal filings imply that reporters who don’t follow the rules risk more than their press passes. On March 12, the DOJ filed a brief to clarify its lawyers’ earlier comments in a discussion with Friedman at a hearing of “whether asking a question was a criminal act.” The government argued that although journalists may lawfully ask questions of “authorized” Pentagon personnel, “a journalist does solicit the commission of a criminal act, and that solicitation is not protected by the First Amendment, when he or she solicits … non-public information from individuals who........

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