After receiving backlash for its new media restrictions, the Pentagon released a revised version last week that press freedom advocates say attacks the very act of reporting itself. By redefining ordinary reporting as “solicitation” of information, the rules risk turning basic newsgathering into grounds for punishment, and could make it harder for the public to know what the military is doing.
The Pentagon first unveiled its new rules for press-credentialed journalists Sept. 18 in a memo that contained language many interpreted as forbidding reporters from publishing information that had not been approved for release. The stipulation applied even to unclassified information — an unprecedented move. Journalists who did not agree to the rules risked losing their press passes.
No journalists signed the initial memo, and the Pentagon distributed a new version Oct. 6. Despite some initial media reports framing the revised rules as being more relaxed, journalists and First Amendment advocates say the updated memo is just as dangerous. While it clarifies that journalists do not need to submit their writing to the Department of Defense for approval, it warns that journalists who “solicit” federal employees to disclose information that has not been approved for release may lose their press credentials.
“Solicitation may include direct communications with specific (Defense) personnel or general appeals, such as public advertisements or calls for tips encouraging (Defense) employees to share non-public (Defense) information,” the revised memo states.
In essence, the new memo shifts from attacking journalists’ ability to publish the news to attacking their ability to gather it, experts say. From a press freedom standpoint, the dangers of the revised version “are clearly no better” than the ones in the initial version, said PEN America journalism and disinformation program director Tim Richardson.
“This latest version has escalated the threats more around the act of reporting itself,” Richardson said. “Rather than this overt censoring of journalists, which was how the initial version appeared, it has morphed into this effort to intimidate both journalists and government employees as well.”
The memo warns that civilian, contract or military employees who disclose nonpublic information without approval — even if it is unclassified — risk “adverse consequences” that could include criminal liability.
The new rules could run afoul of the First Amendment, according to some legal experts. Restricting unclassified or politically sensitive disclosures could constitute “prior restraint,” said National Press Photographers Association general counsel Mickey Osterreicher. The Supreme Court has found prior restraint, the government censorship of speech before it happens, unconstitutional under many circumstances.
“The Pentagon’s language blurred the line between legitimate national security protections and unconstitutional prior restraint,” Osterreicher wrote in an email. “It treated ordinary newsgathering — asking questions, cultivating sources, seeking tips — as if it were solicitation of unlawful disclosures. That framing isn’t supported by the law.”
The Supreme Court’s decision in the 2001 case Bartnicki v. Vopper generally found that as long as a journalist does not induce someone to break the law or break it themselves, they can receive and publish information that has been illegally obtained, even if they are unsure of its origins, Freedom Forum vice president and First Amendment expert Kevin Goldberg said.
The Pentagon’s revised memo notes that journalists who receive unsolicited information are generally protected by the First Amendment. However, it argues further, “The First Amendment does not permit journalists to solicit government employees to violate the law by providing confidential government information.”
But simply asking a question is not breaking the law, Goldberg said. A reporter might ask an innocuous question that leads to them receiving unauthorized information, but that would be protected by the First Amendment. The vagueness and broadness of the revised guidelines — one cannot know in advance of asking a question whether the answer will include unauthorized information, for example — is a major issue, legal experts said.
“The First Amendment clearly says, if there’s any vagueness around whether you are breaking a law or not, you are not breaking the law,” Goldberg said. “That is what the First Amendment protects. It protects your right to say things, to ask questions you know that are in the gray areas.”
An example of what the First Amendment would not cover is a reporter who knows that the information they are seeking cannot be lawfully obtained and then asks or helps someone to break the law to obtain that information.
Goldberg further said that he believes the Pentagon’s position that an employee is breaking the law anytime they release something that hasn’t been approved is also “incorrect.” “Even within government, nondisclosure agreements still have to stand up to the First Amendment.”
Chief Pentagon spokesperson Sean Parnell, who authored both the initial memo and the revised one, said in an emailed statement that the new guidelines reaffirm standards “already in line with every other military base in the country.”
“These are basic, common-sense guidelines to protect sensitive information as well as the protection of national security and the safety of all who work at the Pentagon,” Parnell said.
The deadline to sign the revised memo is Monday, and a few outlets, including CNN and The New York Times, have already said their reporters will not sign it. The Pentagon Press Association released a statement Wednesday arguing that the restrictions would restrict access that journalists at the Pentagon have held since the 1950s. That access, they wrote, has never caused “the kind of national security crisis feared by the current leadership of the department.”
Though the Pentagon has argued that the new rules are required for security purposes, experts note that they are simply part of a broader trend of government officials attempting to restrict the flow of information.
Going back to Watergate and the Nixon administration, the government has increasingly adopted private sector public relations tactics to control what the media reports, said David Cuillier, director of the Freedom of Information Project at the University of Florida’s Brechner Center. That includes requiring reporters to submit questions in writing ahead of time, requiring PR staff to sit in on interviews and blackballing reporters who produce negative coverage. It is a trend that happens at all levels of government, he said.
“We’re at this point where there are fewer reporters out there covering this stuff and news organizations are less inclined to hire lawyers and push than they used to be,” Cuillier said. “So the government gets away with it.”
While this has been an ongoing trend, experts said the threat of sanctions — the loss of press credentials — is new. Current Pentagon leadership have also taken the unprecedented steps of stripping outlets of their dedicated workspaces and severely restricting the areas in which press are allowed to be without an escort.
The public loses out when journalists cannot do their jobs and report freely on the government, experts said.
“If the policies that will be in effect here in a few days had been in effect in previous eras, the public might never have learned about Abu Ghraib or the Pentagon Papers or civilian deaths from U.S. airstrikes,” Richardson said. “And it’s those stories that really defined accountability journalism, particularly in wartime.”
