Pentagon Journalist Escort Requirement Can Continue Pending D.C. Circuit Decision

A divided panel of the D.C. Circuit Court of Appeals has granted a stay allowing the Pentagon to continue enforcing a policy requiring credentialed journalists to be escorted at all times while on Pentagon grounds, pending an expedited appeal. The majority, Judges Karen LeCraft Henderson and Patricia Millett, found the government likely to succeed on its argument that the generally applicable escort requirement does not constitute a sufficiently adverse action to support a First Amendment retaliation claim. The policy was challenged by The New York Times and reporter Julian Barnes after the Pentagon imposed it following an earlier injunction. The district court had preliminarily enjoined the escort requirement, finding it was issued in retaliation for the plaintiffs' protected First Amendment activities. Judge Bradley Garcia dissented, arguing the majority cited no binding precedent for its proposition that a generally applicable policy cannot be retaliatory. The case is set for expedited oral argument.