Appeal from the United States District Court for the District of Columbia (No. 01cv02399)
Before: Edwards, Sentelle and Henderson, Circuit
The opinion of the court was delivered by: Sentelle, Circuit Judge
Larry Flynt and L.F.P., Inc. (the company that publishes Hustler magazine) (collectively "Flynt" or "appellants") sued Donald H. Rumsfeld, Secretary of Defense, and the United States Department of Defense ("DOD") seeking, inter alia, injunctive relief against interference with its exercise of a claimed First Amendment right of the news media to have access to U.S. troops in combat operations, and claiming that DOD's delay in granting Hustler 's reporter access to U.S. troops in Afghanistan infringed that right. They further argued that DOD's Directive controlling media access to military forces facially violates this same constitutional right. The District Court dismissed Flynt's as-applied constitutional claims for lack of ripeness and standing, and refused to exercise its discretion under the Declaratory Judgment Act to declare the pertinent DOD Directive facially unconstitutional. This appeal followed. Because we find that no such constitutional right exists, we will affirm the District Court's decision on other grounds.
A. Hustler 's attempts to gain access
Shortly after the September 11, 2001, terrorist attacks, the United States military began combat operations in Afghanistan in support of the global war on terrorism. On October 30, 2001, Flynt wrote a letter to the Honorable Victoria Clarke, Assistant Secretary of Defense for Public Affairs, requesting that Hustler correspondents "be permitted to accompany ground troops on combat missions and that said correspondents be allowed free access to the theater of United States military operations in Afghanistan and other countries where hostilities may be occurring as part of Operation Enduring Freedom." Two weeks later, on November 12, 2001, Flynt wrote Clarke again requesting the same access and complaining about her failure to respond to his October 30 letter. Three days later, on November 15, Clarke sent Flynt a fax stating that access to ground operations was not immediately possible because "... the only U.S. troops on the ground in Afghanistan are small numbers of servicemen involved in special operations activity." Clarke explained that "[t]he highly dangerous and unique nature of their work makes it very difficult to embed media" with ground troops, but also stated that there had been "extensive" media access to other aspects of military operations. Specifically, "[s]cores of reporters and photographers have covered the [air] strikes, witnessed the humanitarian drops and interviewed dozens of [soldiers]." Clarke then provided Flynt with contact information for the Fifth Fleet Public Affairs Officer so that Hustler could have similar access.
Not satisfied with the access provided by DOD, and that other media outlets had received, Flynt did not contact the Fifth Fleet Public Affairs Officer; rather, he filed this lawsuit the day after he received Clarke's fax. Shortly after filing suit, Flynt sent another letter to Clarke on January 15, 2002, stating that "I did not contact [the Fifth Fleet Public Affairs Officer] because I did not request any such access or similar access. Rather, I specifically requested reporter access to actual battlefield combat activities." The letter also characterized Clarke's description of special operations activities as vague. Two weeks later, Flynt sent another letter to Clarke requesting an immediate response to his January 15 letter. Clarke responded by letter on February 4, 2002, reiterated DOD's position, and again described the access that was currently available. Furthermore, she stated that "all [your reporter] needs to do is work with [DOD's] people on the ground." She also provided Flynt with an extensive list of contact persons and explained that DOD decisions regarding media access were controlled by Department of Defense Directive 5122.5.
On February 19, 2002, Flynt's lawyer sent an email to Lieutenant Commander Bonnie Hebert, one of the contacts Clarke had provided, requesting "permission to have Hustler magazine correspondents accompany and report on the activities of American soldiers on the ground in Afghanistan who are engaged in combat actions." Hebert responded three days later, asking "[w]here exactly in Afghanistan would you like to go?" and requesting the identity of the reporter. This began a series of communications that ultimately resulted in David Buchbinder, a Hustler reporter, arriving at Bagram Air Force Base by May 7, 2002. Once in Afghanistan, Buchbinder placed himself on a list of reporters awaiting access to ground units. Since his arrival in Afghanistan, Buchbinder has filed several stories, at least one of which shows he has accompanied troops on a search for al Qaeda operatives.
As stated above, DOD decisions regarding media access to combat troops are guided by Department of Defense Directive 5122.5. This Directive, issued on September 27, 2000, assigns the responsibility of "[e]nsur[ing] a free flow of news and information to the news media" to the Assistant Secretary of Defense for Public Affairs. Directive 5122.5. The Directive contains three enclosures. At issue in this case is Enclosure 3, entitled "Statement of DOD Principles for News Media." This enclosure begins with the command that "[o]pen and independent reporting shall be the principal means of coverage of U.S. military operations." ¶ E3.1.1. It then outlines the manner in which such coverage should occur. It allows for media pools, limited numbers of press persons who represent a larger number of news media organizations and share material, but states that pools are not to be the "standard means of covering U.S. military operations." ¶ E3.1.2. Rather, pools are only to be used when space is limited or areas to be visited are extremely remote. ¶ E3.1.3. It also directs that "field commanders should be instructed to permit journalists to ride on military vehicles and aircraft when possible." ¶ E3.1.7. In sum, the Directive represents an attempt to facilitate broad media coverage, and contains few restrictions, including limited restrictions on media communications for security purposes and expulsion for members of the media who violate the ground rules. Id. at ¶ ¶ E3.1.4. & E3.1.8. It also includes the caveat that "[s]pecial operations restrictions may limit access in some cases." ¶ E3.1.5.
Flynt and L.F.P., Inc., filed their initial complaint against the DOD and Secretary Rumsfeld on November 16, 2001, requesting preliminary and permanent injunctive relief. In addition, Flynt challenged Directive 5122.5 on the grounds that (1) enforcement of the policies violated his historical and constitutional rights of access to the battlefield; (2) enforcement of the policies amounted to a content-based prior restraint that deprived him of his First Amendment rights; (3) DOD's denial of his request was not narrowly tailored to further a substantial government interest; and (4) DOD's denial was arbitrary and capricious and made without reference to specific and objective standards.
After a hearing on Flynt's motion for a preliminary injunction, the District Court denied the motion, stating that it was "persuaded 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" about U.S. military operations, subject to reasonable regulations. Flynt v. Rumsfeld, 180 F. Supp. 2d 174, 175 (D.D.C. 2002). That being said, the District Court determined that Flynt's likelihood of success on the merits was "far from clear," id. at 176, and ...