New York Times v. Department of Defense - Opposing Government Control Over Pentagon Journalists' Reporting

Once again, the Trump Administration is attempting to exert unconstitutional control over the content of expression—this time, by affording executive officials unbridled discretion to revoke Pentagon correspondents’ press access for receiving, soliciting, or reporting “unauthorized” information.

In the fall of 2025, the Department of Defense promulgated a new policy granting Pentagon officials unbridled and standardless discretion to deem a journalist “a security or safety risk to [Department] personnel or property,” including on the basis of that journalist’s (or their news organization’s) receipt, publication, or “solicitation” of any information, classified or unclassified, that is not “authorized” by the Department. Under the Policy, such conduct—which is the bread and butter of independent journalism—is punishable by suspension of journalists' Pentagon access.

Rather than subject themselves to these viewpoint-based restraints on their reporting and the limitless discretion of Administration officials to kick them out, New York Times reporters turned in their press credentials and sued, asserting violations of the First Amendment and due process. Thereafter, the new "Pentagon press corps" consisted of ideological allies of the Trump Administration.

In January 2026, we and the National ACLU filed an amicus brief in support of the New York Times' motion for summary judgment. Our brief placed the Pentagon policy in historical and global context. We argued that American history shows that scrupulous protection of the press’s right to disseminate information, without fear or favor to those in power, is essential to our democracy. From early American history, to World War I, to the Second Red Scare, our country has regretted the moments it has faltered in protecting the free press. And we argued that developments in other democracies and former democracies highlight the dangers of allowing the government to infringe on speech and press freedoms. Across the world—including in the Philippines, Hungary, Turkey, and Russia—democracies have backslid into repressive regimes with few freedoms after their institutions failed to hold the line on free expression.

The lessons from history and other nations' experience should strengthen courts' resolve to apply the First Amendment rigorously, especially when the Trump Administration is relentlessly pursuing ideological conformity by attempting to punish or silence disfavored speech by lawyers, students, government employees, and universities, as well as journalists and media outlets.