Limitations on the First Amendment Right of Access to Information Controlled by the Government (Case Note)

Abstract

Flynt v. Rumsfeld addressed the issue of whether members of the media have a First Amendment right to accompany United States troops into combat. This issue arose when the Department of Defense (“DOD”) declined the request of Larry Flynt of Hustler magazine to embed one of his reporters with ground troops in Afghanistan in October 2001. Flynt claimed that the DOD's denial of his request violated an alleged First Amendment right of access to government information. The case came before the United States District Court for the District of Columbia as the result of a motion for dismissal filed by the defendant, Secretary of Defense Donald Rumsfeld, and the D.C. Circuit affirmed the district court's dismissal of Flynt's claim.

Examination of First Amendment principles regarding media coverage of military operations has heightened importance in the current climate of the U.S. war on terrorism. Because the historic role of the media provides a means by which to keep the citizenry informed of government action, the proper relationship between the government and the media must be examined closely. Recently, controversial issues have arisen regarding the U.S. decision to enter into war in Iraq, the indefinite detainment of enemy aliens at Guantánamo Bay, and human rights abuses at the Abu Ghraib prison. Even though these incidents have raised issues related to individual liberties and brought to the forefront the importance of media access to military operations, the D.C. Circuit's decision to decline extension of the media's narrow right of access to military operations is consistent with well-established constitutional principles.

Because granting carte blanche to access all government information cannot be justified by the Constitution and because a narrow extension of Richmond Newspapers, Inc. v. Virginia would fail to reach Flynt's claimed right for reporters to embed with troops, the D.C. Circuit correctly affirmed the lower court's dismissal in Flynt v. Rumsfeld. Perhaps Congress should consider whether increased military operations during the war on terrorism merit legislation requiring enhanced media access to military operations to engender greater public accountability. There is no basis for the judicial system, however, to find a new constitutional right of access to military operations under the First Amendment.

Keywords: First Amendment, military, Rumsfeld, Department of Defense, right of access, information, media, Constitution, free speech, freedom of the press