Media Access To Troops Can Be Denied

WASHINGTON - A federal appeals court ruled Tuesday that the Pentagon has no constitutional obligation to provide the media access to U.S. troops during combat.

The U.S. Court of Appeals for the District of Columbia Circuit made the ruling in a case involving Larry Flynt, the self-described smut peddler who publishes Hustler magazine. Although no other media organizations joined his case, the ruling was seen as a disappointment for journalists.

"I hope the ruling isn't used as an excuse to keep the news media away from the military," said Stuart Wilk, managing editor of The Dallas Morning News and president of the Associated Press Managing Editors. "The media, after all, is merely representing the public and transmitting information that we believe is in the public interest."

The ruling is believed to be the first ever by a federal appeals court on the issue of whether journalists have a First Amendment right to be given access to news, rather than be able to publish information they already gathered. A handful of lower courts previously had ruled that journalists did not have that right.

"That's disturbing," said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, based in Arlington, Va. "But I think at some point, there will be a case with very good facts for the court in recognizing journalists' rights."

Flynt sued the Defense Department after officials declined his request to have reporters accompany the first wave of U.S. troops sent to Afghanistan shortly after the Sept. 11, 2001, terrorist attacks.

Defense officials then said only a small number of troops were in Afghanistan and that "the highly dangerous and unique nature of their work make it very difficult to embed media." They also noted that the media was given access to other aspects of military operations.

A lower court dismissed Flynt's complaint on procedural grounds, saying the case was filed too early because the Defense Department had left open the possibility of media access at a later date.

Flynt argued that a 1980 Supreme Court case providing for a constitutional right of access to criminal trials extended to "government operations" in general, allowing for journalists to have troop access.

The appeals court rejected that argument, saying there "is nothing we have found in the Constitution, American history, or our case law to support" the claim that reporters have a constitutional right to cover troops in combat.