E.  Flynt Loses to Defense Dept. 

in Quest for Battlefield Access

 

      Porn magnate Larry Flynt has defeated many foes in various First Amendment battles over the years, including his celebrated win over Jerry Falwell in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1986).  So far, however, the Department of Defense has proved to be a much tougher foe in federal court.

      Beginning in the fall of 2001, Mr. Flynt first sought media access to cover military ground force action in Afghanistan.  In a faxed response, the Defense Department responded on Nov. 15, 2001:

 

A particular challenge right now is that the only U.S. troops on the ground in Afghanistan are small numbers of servicemen involved in special operations activity.  The highly dangerous and unique nature of their work makes it very difficult to embed media.  We’re exploring many options, however, and remain hopeful that we can facilitate some aspects of special operations activities.

 

      The Defense Department relied in part on Department of Defense Directive No. 5122.5 and its Enclosure 3 entitled “Statement of DoD Principles for News Media.”  This policy provides in part that journalists “shall be provided access to all major military units,” but “special operations restrictions may limit access in some cases.”

 

Flynt Claims First Amendment Violation

      Mr. Flynt sued the Department of Defense in federal court, claiming that the department and its policy violated the First Amendment by refusing to recognize a qualified right of access to cover military proceedings.  The lawsuit also alleged that the Defense Department policies granted unfettered discretion to officials to determine whether to allow or disallow media coverage.  Mr. Flynt and his media company claimed that the defendants’ policy amounted to an unconstitutional prior restraint on expression. 

      On Jan. 8, 2002, U.S. district court Judge Paul L. Friedman denied Mr. Flynt’s request for a preliminary injunction in Flynt v. Rumsfeld, 180 F. Supp. 2d 174 (D.D.C. 2002).  Judge Friedman determined that it was too early to grant the plaintiffs’ relief, writing: “Whether defendants are doing enough to satisfy the First Amendment or the Due Process Clause are questions that will have to await the development of a fuller record.”

      Judge Friedman noted that “in an appropriate case there could be a substantial likelihood of demonstrating that under the First Amendment the press is guaranteed a right to gather and report news involving United States military operations on foreign soil subject to reasonable regulations to protect the safety and security of both the journalists and those involved in those operations.”

      After this ruling, the plaintiffs filed an amended complaint, alleging that the defendants’ policies and actions violated the First Amendment, both on their face and as applied to the plaintiffs.

      The Department of Defense filed a motion to dismiss on several grounds.  It argued that the plaintiffs’ claims were not ripe and that the plaintiffs lacked standing.  It also contended that the court should defer to the Executive Branch under the political question doctrine, which provides that certain political questions should be removed from judicial review.  The defendants also contended that the court should decline to exercise jurisdiction over the case under the Declaratory Judgment Act, 28 U.S.C. Sec. 2201(a).

 

Court Rejects Flynt Challenges

      The court rejected both the as-applied and facial challenges, though on different grounds.  Flynt v. Rumsfeld, 245 F. Supp. 2d 94 (D.D.C. 2003).  Judge Friedman determined that the as-applied challenges were not ripe because there had not been a sufficient denial of access.  “Certainly, plaintiffs are correct that the Fax of November 15, 2001 did not explicitly grant them access to ground troops on combat missions in Afghanistan,” he wrote.  “The absence of an explicit grant of access, however, did not constitute a denial of access sufficient to serve as a final agency decision ripe for judicial review.”

      For similar reasons, the court also determined that the plaintiffs lacked standing to bring the suit.  In order to have standing to bring a claim, a litigant must suffer an injury of a legally protected interest. According to Judge Friedman, “plaintiffs have not adequately shown that defendants have in fact denied [their] request for access to ground forces in combat in Afghanistan.”

      Judge Friedman used different legal reasoning to grant dismissal of the facial challenges.  The legal doctrines of ripeness and standing are relaxed in a First Amendment facial challenge.  The judge also determined that the plaintiffs’ First Amendment facial claims -- which include whether there is a qualified right of access to military activity -- should not be dismissed based on the political question doctrine.

      The plaintiffs’ claims do not ask the court to delve into military tactical decisions, or other areas of the Executive Branch off limits to the judiciary, the judge reasoned.  However, the judge still ruled in favor of the Department of Defense.  He based his decision upon his discretion afforded under the Declaratory Judgment Act, which he said enables a court in appropriate circumstances to decline to assert jurisdiction.

      “Here the plaintiffs ask the Court to expand the scope of recognized facial challenge claims based on prior restraint of speech in the domestic licensing context to entertain a challenge to a statutory scheme that allegedly infringes on free press rights of access to battlefields in time of combat,” he wrote.  “This is not an uncontroversial extension of the facial challenge doctrine.”

      The judge concluded that “the more prudent course is to delay resolution of these constitutional issues until and unless plaintiffs are denied access after having pursued their relief through normal military channels.” 

      Roger Wilcox, attorney for Mr. Flynt and his media company, told the author that they would appeal the judge’s ruling.

 

--David L. Hudson, Jr.