If you believe news matters — and the fact that you are reading this in The Colorado Sun suggests you do — The New York Times lawsuit against the Pentagon is a critical test for the free press and its place as a pillar of democracy.
The lawsuit comes after the Pentagon instituted a new policy that all but required reporters to act as official mouthpieces in October. The unprecedented rules limited access to sources, required escorts throughout the building, limited investigative inquiries, threatened punitive action and effectively made it impossible for reporters to do their jobs. The rules went from a single page to 21 pages.
In response, almost every serious reporter walked out rather than sign the new rules. The walkouts came from not just mainstream sources, but also outlets that lean to the right including Fox and Newsmax.
Now the Times is suing the Department of Defense (as they note, aka the Department of War, and as I note,The 40-page complaint (with nearly 100 exhibits) asks the court to find the new rules unconstitutional and enjoin any enforcement of them.
The complaint claims the new restrictions violate reporters’ First Amendment rights to engage in newsgathering and reporting, as well as their Fifth Amendment rights to keep their government-issued credentials absent due process. The combination effectively stops reporters from asking questions and reporting anything beyond the official Pentagon propaganda. But at least they aren’t being deported or murdered without due process!
How courts react will be an interesting case study. At a lower level, the case law is compelling in favor of the Times. Once press have been granted access to a government facility, removal must meet a pretty high bar. That applies for every government building up to and including the White House.
The real question will be: What will the U.S. Supreme Court do? To the consternation of many legal observers, they have been willing to eschew precedent and sound policy to deliver outcomes for President Donald Trump and his administration. In this case, it might cut journalism to the quick. After all, once you’re granted the president blanket immunity, why not undermine the journalists who would point out every consequence of such a system?
And therein is the real danger.
News does matter. Years ago I contributed a column to the acclaimed Denver Post editorial edition that made that very proclamation. I titled it “Who will ‘be there’ when journalists are gone?” At the time we wrote about the changing news industry where mergers and consolidation were eating away at newsrooms. The focus on bottom lines had undermined journalists who knew how to get at the truth. The industry continues to struggle with the same forces today. Thankfully alternatives like The Colorado Sun have helped combat that decline.
But what the Pentagon has done is an entirely new threat.
It is difficult to imagine many instances where seasoned journalists are more important than covering the military. The immense power of the military, including life and death decisions, demands thorough scrutiny to avoid abuse. As seen in too many countries that have fallen into autocracies, an unchecked military quickly becomes a threat to entire countries.
Providing that necessary coverage requires institutional knowledge and memory. Few, if any, areas of the government have so many complex procedures and overlapping areas of authority. It is a tangled labyrinth almost as big and confusing as the Pentagon itself. It requires someone with years of experience and contacts to understand and write about coherently.
So when all the reporters with that experience get sidelined, it puts us all in danger.
Look no further than what the Pentagon press corps looks like right now. There are bloggers and daytime television hosts with zero experience covering national defense. There are conspiracy theorists who have been discredited time and again. We have Laura Loomer, professed “Islamaphobe” and disgraced former Congressman Matt Gaetz who paid a 17-year-old for sex.
Maybe the most qualified members of the current press corps are the early 20-somethings who would normally be running to get coffee as an intern. Now they just excitedly regurgitate the official talking points issued by the Pentagon. They are shills and happy about it.
It is, as former White House press secretary and MS NOW host Jen Psaki proclaimed, “state sponsored media.” The military apparatus of our country is now covered by lackeys and bootlickers willing to be useful propagandists. Joseph Goebbels would feel right at home in such a scenario.
But all is not lost. As the courts weigh in, the reporters who walked out continue to cover the Department of Defense, albeit from the outside. Leveraging their knowledge of the military and personal contacts, they have continued to out-report and out-scoop the Pentagon Propagandist Corps.
Those veterans of decades helped break the story about orders to fire a second shot at individuals stranded on a capsized boat. They have continued to press Defense Secretary Pete Hegseth and his leadership for answers. More importantly, they have not compromised their journalistic ethics by writing anything without substantive review.
What happens with the Times lawsuit is important. What happens to the reporters at its center is even more so. Our nation needs a strong press that cannot be dismissed out of hand by the powerful. Otherwise, we really will be lost.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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