From N.Y. Times v. U.S. Dep't of Defense a/k/a Dep't of War, decided yesterday by Judges Justin Walker and Bradley Garcia:
Last fall, the Pentagon announced a new policy governing Pentagon Facility Alternate Credentials (PFACs), the passes journalists have historically used to access the Pentagon. The new policy restricted this access and implemented rules that would allow the Pentagon to revoke credentials if the holder was determined to be a "security or safety risk to Department personnel or property." A reporter could be deemed a "security or safety risk" "based on the unauthorized access, attempted unauthorized access, or unauthorized disclosure" of Department information.
The New York Times (NYT) and one of its journalists, Julian E. Barnes, filed suit to enjoin several provisions of the policy as unconstitutional under the First and Fifth Amendments, and as arbitrary and capricious under the APA. On cross-motions for summary judgment, the district court held that the rules governing when a PFAC may be denied for "security" reasons were unconstitutionally vague in violation of the Fifth Amendment because they "fail[ed] to provide fair notice of what routine, lawful journalistic practices" would trigger credential revocation.
Turning to the First Amendment, the court noted there was no dispute that "[t]he regular presence of PFAC holders at the Pentagon … enhanced the ability of journalists and news organizations … to keep Americans informed about the United States military." Moreover, this arrangement had "pos[ed] no security or safety risk to Department property or personnel." By contrast, the district court concluded that the record was "replete with undisputed evidence that the Policy" was specifically, and unreasonably, designed to deprive "disfavored" journalists of access to a nonpublic forum. Accordingly, the district court granted summary judgment to the plaintiffs on their constitutional claims, without addressing the APA claim.
The next business day, the government replaced the invalidated policy with a new one that revised provisions the district court had declared unconstitutional and announced new "physical security restrictions" for all PFAC holders. Those restrictions required that PFAC holders be escorted in all areas of the Pentagon "at all times" and limited their opportunities for entry to five approved purposes. At the same time, the Department announced that the previously available workspace in the "Correspondents' Corridor" was closed and that a new workspace "will be established in an annex facility."
