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:
