DC Circuit grants stay allowing Pentagon to enforce journalist escort policy 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, reversing a lower court order that had blocked the measure.

Court Ruling

In a decision issued yesterday in N.Y. Times Co. v. U.S. Dep't of Defense, Judges Karen LeCraft Henderson and Patricia Millett granted a stay of the district court's injunction, writing:

"[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, nor that it is not being implemented evenhandedly. They also found no evidence that the policy has a "distinctively adverse impact" on the plaintiffs compared to other covered reporters.

The court set the case for expedited oral argument.

Dissenting Opinion

Judge Bradley Garcia dissented, outlining the following timeline and arguments:

• October 2025: The Department of Defense adopted a new, restrictive policy governing credentials for Pentagon journalists.
• Subsequent lawsuit: The New York Times and its reporter Julian Barnes sued, and the district court issued an injunction.
• New policy: Within days, the Department announced a new policy requiring credentialed reporters to be escorted at all times while on Pentagon grounds.
• District court ruling: The district court preliminarily enjoined the escort requirement after determining "it was issued to retaliate against the plaintiffs for exercising their constitutional rights."

Judge Garcia stated that 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 "would deter persons of ordinary firmness from exercising their First Amendment rights."
3. Causal link: There was a connection between the plaintiffs' protected activity and the imposition of the escort requirement.

According to the dissent, 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—dramatically reducing their practical ability to access the premises and rendering informal interactions with government sources "difficult if not impossible."

For the causal link, the district court cited "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, combined with the Pentagon's shifting and "facially dubious" rationales, demonstrated that the requirement would not have been adopted but for the plaintiffs' protected First Amendment activities.

Judge Garcia criticized the majority's reasoning, arguing that it "cites no binding precedent" for the proposition that a generally applicable policy cannot constitute an adverse action, and that "none exists."