On the February 3, 2004, the US Court of Appeals for the District of Columbia…
On the February 3, 2004, the US Court of Appeals for the District of Columbia Circuit, rejected a lawsuit filed by Larry Flynt, a porn publisher, which claims that preventing his reporters from freely covering the invasion of Afghanistan, contradicts his rights in accordance with the First Amendment to the US Constitution, which prescribes, inter alia, that freedom of the press and freedom of speech is inviolable. The Court confirmed a verdict handed down last year by Federal Judge Paul Friedman in Washington, DC, which ruled that Flynt’s constitutional rights and that of his newspaper had not been abused in any way. The Judge added that the news media do not have a constitutional right to cover wars, namely, the US Department of Defense has no obligation to include the news media in military campaigns in general and in special campaigns in particular.
Flynt, the publisher of the monthly magazine The Hustler, has been suing for over twenty years, in order to broaden the protective shield provided by the First Amendment. In 1983, he sued the US Department of Defense because of limitations placed on coverage of the first stages of the invasion of Grenada in the Caribbean. In 1991 he again sued the Pentagon – because of limitations placed on the coverage of the war in Iraq. Both these lawsuits were rejected by the Supreme Court due to mootness.  At the end of 2001, Flynt requested that one of his reporters be embedded in the US special forces operating in Afghanistan, but was rejected by the Department of Defense. Flynt appealed the rejection to the Federal Court, which a year ago handed down a verdict that it did not have jurisdiction to deal with the constitutionality of preventing the reportage, seeing as the Department of Defense had not officially refused to enable the Hustler’s reporters to cover the war. As mentioned, Flynt appealed this judgment to the Appeals Court. He also requested a ruling that the Department of Defense directives regarding coverage of the war contradict the First Amendment. He contended that in light of the 1980 Richmond Newspapers precedent, set by the Supreme Court, the US Government must include the news media corps in military campaigns unconditionally. In this case, the Supreme Court ruled that the media must be allowed to interview inmates held in State prisons. The Court of Appeals now rejected his claim stating that the coverage of overseas wars is not the same as covering State prisons inside the United States itself.
Flynt also tried to claim that based on the JB Pictures precedent, which determines that the Pentagon must allow the coverage of burial ceremonies of US soldiers who fell in action, and their coffins were brought to the Dover Airforce Base, DE his rights to cover the war are infringed.
In Judge Friedman’s judgment, the Court of Appeals determined that Larry Flynt did not prove that his claim was ripe and that he was entitled to the right of standing. Judges Harry Edwards, David Sentelle and Karen Henderson of the US Court of Appeals for the District of Columbia Circuit held that the Pentagon had taken reasonable steps and had not deviated from the requirements of the US Constituion. They added that a Hustler reporter had covered the war in Afghanistan from May 2002.
The Court of Appeals judges added that there is no historical proof that the media was given free access to military units in US wars and it is not clear that military reporters were actively embedded into units – as requested by the appellant.
The judges also analyzed the Pentagon’s directives regarding the embedding of reporters in military units and found no constitutional errors. They determined that the Pentagon’s directives were completely reasonable. The Court therefore refused to give Flynt any support. However, the Court did not satisfy itself with this ruling and added: “Because we hold that there is no constitutionally based right for the media to embed with US military forces in combat, and because we further hold that the [DoD] Directive [5122.5] was not applied to Flynt or Hustler magazine in any unconstitutional manner, the District Court’s judgment is affirmed.”
Sometimes, secondary-legislation – by means of a Court rulings – is not desirable. This is because it is preferable for elected officials to decide on legislation and precedents. Indeed, many agencies of the Executive Branch avoid taking advantage of all their rights, through litigation in courts, so as not to create a legal precedent which will be binding on the future.
In the case in question, Larry Flynt’s motive is his desire to broaden the constitutional protection of his publishing businesses. He succeeded in his case against Reverend Jerry Falwell twenty years ago. However, since then, he has constantly failed in his fight against the Pentagon’s public relations policy. This time, the ancient Jewish proverb applies: “A fool throws a stone into the river and forty wise men are unable to retrieve it”, which means, the ruling of the Court of Appeals in Washington, DC is a far-reaching reversal on the way to a free coverage of national defense affairs and particularly – coverage of wars – in the United States. Only a decision of the US Supreme Court will be able to annul it and this does not seem at all likely.
By endorsing Judge Friedman’s verdict, the Court of Appeals rejected Flynt’s claim that he should be permitted to cover Special Forces’ campaigns. His contention, that he and his paper were discriminated against, in comparison to other journals and reporters, was also refuted.
The Court of Appeals verdict has great significance in regard to the coverage of Counter-Terrorism, where secrecy and operations in small groups and by special forces are of the utmost importance. Even those who delighted in Flynt’s downfall, could not ignore the troubling fact that the US Court predominantly restricted journalists’ rights, according to the First Amendment. It is quite possible that in the future the Pentagon may take advantage of the precedent to keep the news media away from the battlefields.
By giving a legal and historical analysis, the US Court ratified the Pentagon’s right to determine when and how US wars are covered. Mainly, because the judges defined the Pentagon’s public relations policy as reasonable and mindful of the media’s needs on the one hand and those of the armed forces’ on the other. The verdict is particularly important with regard to “closed wars”, where the military has a monopoly on transport to the war zone, and as a result is able to dictate the coverage policy. This was the case in Granada, Operations Desert Shield/Storm and the present wars in Afghanistan and Iraq.
2. See my article, “Telewar – Lessons of News Management in the Gulf Wars,” online in the website of The International Policy Institute for Counter-Terrorism, June 2003.
3. Meanwhile, when the invasion into Afghanistan ceased being a Special Forces campaign, one of Flynt’s journalists joined the media team covering the US operations in this country.
4. Directive 5122.5.
5. Richmond Newspapers v. Virginia, 448 US 555 (1980).
6. JB Pictures Inc. v. Department of Defense, 86 F. 3d 236, 240 (DC Cir. 1996).
7. Larry Flynt and LEP, Inc. v. Donald H. Rumsfeld, 03-5075 (DC Cir. 2004).
8. Hustler Magazine, Inc. v. Falwell, 485 US 46 (1986).