Washington — A divided federal appeals court said Thursday that the Pentagon can continue enforcing a policy that requires journalists to be escorted while on its grounds.
A panel of three judges on the U.S. Court of Appeals for the District of Columbia Circuit split 2-1 in siding with the Trump administration and agreed to halt a lower court decision that had blocked the escort policy.
Two of the judges, Karen Henderson and Patricia Millett, said the Defense Department is likely to succeed on its argument that the escort requirement does not constitute unlawful retaliation under the First Amendment.
The judges said in an unsigned order that the New York Times and reporter Julian Barnes, who are challenging the rule, "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."
Judge Bradley Garcia dissented, writing that a "retaliatory government policy should not be immunized simply because it is broadly and evenly applied."
"If threatening to impose a requirement like the escort requirement on one journalist would (as the district court found) sufficiently chill his speech, it makes little sense to suggest that effect evaporates if the government threatens to impose the same requirement on all reporters," he wrote. "Indeed, the chilling effect on a speaker with any regard for his peers may be amplified."
Henderson was appointed to the D.C. Circuit by former President George H.W. Bush. Millett was named to the appeals court by former President Barack Obama. Garcia was appointed by former President Joe Biden.
A spokesperson for the Times said, "While The Times is disappointed with this interim decision, we appreciate that the court has expedited the appeal and look forward to litigating it on the merits."
The Defense Department has tightened its rules for reporters covering the military under Secretary Pete Hegseth's tenure and required journalists to agree to a host of restrictions in order to maintain their credentials giving them limited access to the Pentagon. Many news outlets, including CBS News, the Washington Post, CNN and the Times, declined to sign on to the new rules.
The Times and Barnes filed a lawsuit challenging the new restrictions, arguing they violated the First Amendment. After a federal judge invalidated some of the rules in March, the Pentagon issued a revised policy that moved press workspace out of the building and required journalists to be escorted on Pentagon grounds by authorized department personnel.
The Times filed a second lawsuit against the Defense Department over its escort policy in May, arguing that it violates the First Amendment. Last month, U.S. District Judge Paul Friedman sided with the newspaper and blocked the escort rule.
The Trump administration appealed that decision and argued that the escort policy equally applies to all journalists accessing the Pentagon and has not prevented reporters from obtaining access for their newsgathering activities.
Justice Department lawyers called the Times' claims of retaliation "nonsensical."
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