The United States Court of Appeals for the District of Columbia Circuit on Thursday upheld a Pentagon policy requiring that all journalists in the facility be escorted by government personnel, staying a lower court order that had blocked the policy.
The 2–1 ruling held that the government was likely to succeed on the core First Amendment claims at issue in the case. It lifted a lower court order that had blocked the policy, though this could still be reversed as litigation proceeds.
Assistant Attorney General Brett Shumate applauded the ruling.
The ruling centers around an October 2025 press policy by the Pentagon.
Following a flurry of Pentagon leaks to the press, Secretary of War Pete Hegseth sought to require all journalists in the Pentagon to sign a pledge not to publish or gather unapproved or unauthorized information, including unclassified information.
Multiple outlets turned in their press badges rather than sign the pledge. The Epoch Times agreed to the government’s policy.
In a March 2026 decision, U.S. District Court Judge Paul L. Friedman ruled that the pledge demanded by the Pentagon was unlawful.
“The Court recognizes that national security must be protected, the security of our troops must be protected, and war plans must be protected,” Friedman wrote in the decision. “But especially in light of the country’s recent incursion into Venezuela and its ongoing war with Iran, it is more important than ever that the public have access to information from a variety of perspectives about what its government is doing.”
Later, the Pentagon imposed the new escort policy, prompting another lawsuit by The New York Times in which Friedman again blocked the policy.
However, the escort policy was allowed to remain in place after the D.C. Circuit Court stayed part of Friedman’s decision blocking the escort policy pending further litigation.
Friedman later ruled that the escort policy was unconstitutional and sought to again restrict government implementation of the policy.
In its Thursday ruling lifting that decision, the D.C. Circuit Court found that the government was “likely to succeed on their argument that this generally applicable escort requirement does not constitute a ‘sufficiently adverse action to give rise to an actionable First Amendment claim’ of retaliation.”
It’s a signal that the panel is heavily inclined to side with the administration in its final ruling, though litigation and oral arguments in the case will continue through Sept. 18.
The brief majority ruling suggested that The New York Times had not cited specific harms to its organization that were not applied “evenhandedly” to all other outlets impacted by the policy change.
The ruling said the plaintiffs failed to “cite a single case supporting their conclusion that this neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact on [the plaintiffs] can, without more, constitute retaliation under the First Amendment.”
Judge Brad Garcia issued a dissent in the case.
Garcia noted that when the case had earlier appeared before the D.C. Circuit Court, he had voted to send the case back to lower courts to preliminarily assess the constitutionality of the policy.
“The district court has now assessed the lawfulness of the escort requirement,” Garcia wrote. “The district court preliminarily enjoined the policy’s escort requirement after determining that ‘it was issued to retaliate against the plaintiffs for exercising their constitutional rights.’”
Garcia was critical of the ruling, writing that the decision “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.
“We have never held that a government policy cannot constitute unconstitutional retaliation simply because it is evenhanded,” the dissent says. “If threatening to impose a requirement like the escort requirement on one journalist would (as the district court found) sufficiently chill his speech, it makes little sense to suggest that effect evaporates if the government threatens to impose the same requirement on all reporters.”
