DC Circuit allows Pentagon to keep journalist escort requirement pending appeal

A federal appeals court has allowed the Pentagon's policy requiring journalists to be escorted while on its grounds to remain in effect, pending an expedited appeal.

In a decision issued yesterday in N.Y. Times Co. v. U.S. Dep't of Defense, a divided panel of the U.S. Court of Appeals for the D.C. Circuit stayed a lower court order that had blocked the escort requirement.

Majority Opinion

Judges Karen LeCraft Henderson and Patricia Millett wrote for the majority, stating:

"[O]n the record before us, [the government defendants-Appellants] are likely to succeed on their argument that [the] generally applicable escort requirement does not constitute a 'sufficiently adverse action to give rise to an actionable First Amendment claim' of retaliation."

The majority noted that the plaintiffs had not argued that:

• The escort requirement is not generally applicable and applied across the board to all reporters
• The policy is not being implemented evenhandedly
• The policy has a distinctively adverse impact on them or their news reporting ability, different from its effect on all other covered reporters

The court also observed that neither the plaintiffs nor the dissenting opinion cited a single case supporting the conclusion that a neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact could constitute retaliation under the First Amendment.

Additionally, the majority noted that claims the escort requirement is unlawful for reasons other than retaliation had not been raised as a basis for denying the stay.

The court set the case for expedited oral argument.

Dissenting Opinion

Judge Bradley Garcia dissented, providing the following background:

• In October 2025, the Department of Defense adopted a new, restrictive policy governing credentials for journalists at the Pentagon
• The New York Times and its reporter Julian Barnes sued, and the district court issued an injunction
• Within days, the Department announced a new policy requiring credentialed reporters to be escorted at all times while on Pentagon grounds
• The Times and Barnes moved to compel compliance, arguing the escort requirement violated the district court's order
• The district court granted that motion

Judge Garcia noted that the D.C. Circuit had previously granted a limited stay pending appeal because the original injunction "did not address" the later-imposed escort requirement and "the district court did not hold that the escort requirement independently violates" the Constitution.

The district court subsequently assessed the lawfulness of the escort requirement in a separate lawsuit filed by the Times and Barnes directly challenging the new policy. The district court preliminarily enjoined the escort requirement after determining "it was issued to retaliate against the plaintiffs for exercising their constitutional rights."

According to Judge Garcia, the district court found all three elements of a First Amendment retaliation claim satisfied:

1. Protected activity: The plaintiffs engaged in "activity protected under the First Amendment"
2. Adverse action: The escort requirement is an "adverse action that would deter persons of ordinary firmness from exercising their First Amendment rights"
3. Causal link: There was a causal link between the plaintiffs' protected activity and the imposition of the escort requirement

The district court relied on declarations from affected reporters, former Department officials, and other record materials to conclude that the escort requirement "inescapably burdened" the plaintiffs' journalistic work. Specifically, it:

• Dramatically reduced their practical ability to access the premises
• Rendered informal and spontaneous interactions with government sources difficult, if not impossible

As the district court observed, the requirement "made it exceedingly challenging to … cover the Department and the U.S. military from Pentagon grounds."

For the causal link, the district court found "evidence of retaliatory motive" in "myriad statements by Department officials expressing disdain for reporting by The Times and other 'legacy' media outlets" starting "shortly after the confirmation of Secretary Hegseth and continuing through the present." Those "hostile" statements, coupled with the Pentagon's shifting and "facially dubious" rationales for imposing the escort requirement, demonstrated that the requirement would not have been adopted but for the plaintiffs' protected First Amendment activities.

Judge Garcia criticized the majority's decision, stating it "apparently rests on the proposition that a policy like the escort requirement cannot constitute an adverse action if it is 'generally applicable' on paper and in practice." He noted that the majority cited no binding precedent for that proposition, adding: "We have never held that a government policy cannot constitute unconstitutional retaliation simply because it is generally applicable."