The New York Times announced it is suing the Pentagon on First Amendment grounds over a new press policy that led to a slew of news outlets losing their security credentials to be in the building.

The Dec. 4 lawsuit, filed in U.S. District Court for the District of Columbia, said the Pentagon’s policy violates the First and Fifth Amendments, as well as the Administrative Procedure Act.

"It is exactly the type of speech- and press-restrictive scheme that the Supreme Court and D.C. Circuit have recognized violates the First Amendment," the lawsuit said.

The lawsuit was filed on behalf of the news organization and its national security reporter, Julian E. Barnes. The Pentagon, Defense Secretary Pete Hegseth and Pentagon spokesman Sean Parnell are named as defendants.

Parnell told USA TODAY on Dec. 4 that the Pentagon was "aware of the New York Times lawsuit and look(s) forward to addressing these arguments in court."

New policy bars press from 'soliciting' certain information

The Pentagon first issued guidance in September that said reporters could lose their press access by attempting to obtain or publish information not authorized for public release. A new version released Oct. 6 said reporters who "solicit" information not approved for public release could lose their credentials.

The policy says receiving and publishing unsolicited information, including classified information, is "generally protected by the First Amendment and would not, on its own, normally trigger denial, revocation or non-renewal" of credentials. Seeking out such information from department personnel, however, could result in journalists being labeled a "security or safety risk."

It goes on to say decisions on violations will be made "on a case-by-case basis," considering the full context of the incident in question, to "safeguard sensitive information without unduly restricting speech."

The vast majority of news outlets with Pentagon access refused to sign the new policy. Those that did included conservative news websites and networks along with non-traditional media outlets, who made up the group present at the first Pentagon news briefing under the new guidelines on Dec. 2.

Outcome hinges on how court categorizes Pentagon, expert says

Experts previously told USA TODAY it was likely a court would have to decide whether the policy constituted a First Amendment violation.

They included Freedom Forum Vice President Kevin Goldberg, a First Amendment attorney and expert, who told USA TODAY on Dec. 4 that it was a "matter of when, not if" news outlets barred from the Pentagon sued over the matter.

The lawsuit comes on the heels of an ongoing controversy over the Pentagon’s assault on suspected drug boats in the Caribbean, which Goldberg said shows the general public "why they might want full press access to the Pentagon."

He said the outcome of the case will depend on what kind of forum the court determines the Pentagon to be. If the court agrees with the New York Times that the Pentagon is a non-public forum, meaning that the government can impose speech restrictions as long as they are reasonable and viewpoint-neutral, Goldberg predicted that "the Times wins very easily."

In the lawsuit, the outlet argued that the policy is not reasonable in part because Pentagon press access over the years "posed no security or safety risk to Pentagon property or personnel."

It can also point to the remaining Pentagon press corps, largely composed of individuals and outlets friendly to the administration, to support arguments that the policy is not viewpoint-neutral, Goldberg said.

Goldberg noted, though, that there’s "always an element of uncertainty" because of the varying ways different judges could interpret the case.

The New York Times famously won a landmark Supreme Court case against the federal government during former President Richard Nixon’s administration. In that case, the court ruled the government could not bar the press from publishing the "Pentagon Papers," which contained information on the war in Vietnam previously unknown to the public.

BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her at bjfrank@usatoday.com.

USA TODAY's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.

This article originally appeared on USA TODAY: New York Times sues Pentagon over press policy, citing First Amendment

Reporting by BrieAnna J. Frank, USA TODAY / USA TODAY

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