While a new Pentagon press policy has prompted many reporters to stop covering defense issues from inside the Department of War (DoW) building, a copy of the rules obtained by CNSNews reveals that key details of the policy are being mischaracterized by the media.
The new policy, intended to prevent leaks of sensitive information, requires reporters to be accompanied by Pentagon staff in certain areas of the building and forbids them from soliciting unauthorized disclosure of that information. In protest, a large majority of news outlets turned in their press badges.
However, several media have misrepresented the policy, running headlines such as:
- "A dark day": Pentagon confiscates badges of Defense reporters – Axios
- Only 15 reporters remain in Pentagon after press pledge prompted walkouts. This is who they are - The Independent
- News outlets reject Pentagon pledge to only report approved info - UPI
- Journalists turn in access badges, exit Pentagon rather than agree to new reporting rules – Associated Press
- Pentagon Reporters from All but 1 Outlet Surrender Press Passes After Trump Admin Demanded They Only Cover Pre-Approved News - People
In one article, The Washington Post claims the new rules “prohibit soliciting any information the government doesn’t authorize reporters to have” (emphasis added).
The Hill also claims reporters “would need to pledge to not obtain or use any unauthorized material, even if the information is unclassified,” adding that “Media outlets say this is a violation of their First Amendment rights.”
But, members of the press are not actually required to “pledge” anything. They’re just expected to sign a statement acknowledging that they’ve been informed of the rule changes. What’s more, the statement explicitly notes that signing does not indicate agreement with the policy:
“My signature represents my acknowledgement and understanding of such DoW policies and procedures, even if I do not necessarily agree with such policies and procedures. Signing this acknowledgment does not waive any rights I may have under law.”
And, no, the Pentagon did not “confiscate” press badges, as Axios claims in its headline. In actuality, the reporters turned in their press credentials in protest of the new Pentagon policy.
Likewise, the Pentagon policy does not prohibit reporters from soliciting or reporting “any unauthorized material” – just that which is either “classified national security information (CNSI)” or “controlled unclassified information (CUI).”
And, although authorization is required for dissemination of CNSI or CUI by staff, “Members of the news media are not required to submit their writings to DoW for approval.”
Thus, contrary to the People headline, no coverage must be “pre-approved,” though dissemination of CNSI and CUI by staff to reporters does require approval.
The Pentagon policy addresses the First Amendment objection as well, explaining that “There is a critical distinction between lawfully requesting information from the government and actively soliciting or encouraging government employees to break the law.”
“For clarity, the receipt of unsolicited CNSI or CUI and its subsequent publication is generally protected by the First Amendment and would not, on its own, normally trigger denial, revocation or non-renewal of [Pentagon press credentials],” the policy states. However, encouragment of government staff to break the law is not protected:
“The First Amendment does not permit journalists to solicit government employees to violate the law by providing confidential government information.”
…
“Soliciting or encouraging government employees to break the law falls outside the scope of protected newsgathering activities.”
Still, “Nothing in this document requires you to waive any constitutional rights. This in-brief constitutes a description of DoW policies," the policy states.
Even if a reporter is caught soliciting CNSI or CUI, the policy suggests that the violation simply “may” be serious enough to warrant disciplinary action:
“[S]uch conduct may weigh in the consideration of whether you pose a security or safety risk.”
Throughout the document, the policy says that violation of the rules may (not “shall” or “will) result in suspension, denial or non-renewal of press credentials. And, even if disciplinary action is deemed appropriate, the policy provides a thorough appeals process.
Ultimately, the Defense Department has the authority to issues rules of access for reporters because “access is not open to the public or the press as a matter of right but is instead a controlled privilege,” the policy explains:
“Legally, the press has no greater right of access than the public…this is a privilege extended by the government and not a constitutionally protected right.”
As Editor-in-Chief of The Federalist Mollie Hemingway wrote, explaining why her media outlet chose to accept the new Pentagon press policy:
“If the new guidelines result in fewer professional con artists and media hoaxers roaming the halls looking for new lies to peddle, so be it.”
