What accompanies a very simple First Amendment is a very complex legal roadmap for judges.
Like nearly every presidency since the founding, President Donald Trump’s second administration has raised new questions about the First Amendment and what it protects.
Can the secretary of war restrict what journalists ask in the Pentagon? Can the president ban The Associated Press from Air Force One for refusing to call our lovely southern gulf the “Gulf of America”?
These are the questions panelists at Utah Valley University’s Center for Constitutional Studies tried to answer last week during the school’s annual First Amendment conference, which focused on the freedom of the press.
It’s a timely topic. On March 20, a D.C. district court judge ruled in favor of The New York Times after the outlet decided to give up its Pentagon press pass rather than agree to the new policies.
Here’s how we got to this moment in American history:
The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— The U.S. Constitution
What’s up with the Pentagon and the press?
In a policy update from October, the Pentagon asked credentialed reporters to comply with several changes in practice:
- There would be no more press access to the 3rd, 4th and 5th floors, the basement and the Mezzanine, leaving a section of the 2nd floor still open.
- The department revised previous language, switching the “right” to solicit information to the “privilege” to do such.
- The department sought to restrict journalists’ ability to solicit controlled unclassified information.
The new policy said that journalists “do not possess a legal right to access the Pentagon; rather, such access is a privilege, subject to the discretion of government authorities ... Legally, the press has no greater right of access than the public.”
Legally, the press has no greater right of access than the public.
— Pentagon policy update
“If you solicit the disclosure of such information or otherwise encourage DoW personnel to violate laws and policies concerning the disclosure of such information, such conduct may weigh in the consideration of whether you pose a security or safety risk,” the policy change said.
If a journalist is deemed a security risk, the Pentagon claims the right to revoke their press credentials.
The Pentagon set a hard deadline of October 15, 2025, for all credentialed journalists to sign an affirmation of the policy update. If they didn’t sign, they’d lose their credentials.
When the day came, more than 50 journalists left the Pentagon together at the 4 p.m. deadline, The Associated Press reported. Rather than sign, credentialed media from 30 major news organizations, including Fox News, The Wall Street Journal, CNN and The New York Times, turned in their Pentagon badges.
Then The New York Times sued
The Times then sued, claiming the policy gave the Pentagon “unbridled discretion” to subjectively enforce their rules, panelist Clay Calvert, a legal scholar and nonresident senior fellow at the American Enterprise Institute, told the audience at UVU.
Specifically, the NYT claimed the policy violated the First and Fifth Amendments.
First, they said the policy “violated their right as members of the press to report” and “discriminated against them based on their viewpoints,“ Calvert explained.
Second, the press said the policy failed to follow the Fifth Amendment’s promise to provide fair notice. ”If terms are vague — a person of reasonable, ordinary intelligence, looking at the terms of something, would not be able to understand what would get them into trouble — then that’s problematic.“
“Why?” he asked. “Because it creates a chilling effect on the press.”
A D.C. district court judge agreed, ruling in favor of the Times, reasoning that news gathering is protected and vagueness in the policy could be weaponized.
Last Monday, the department announced that they disagree with the court’s decision and will pursue an appeal.
Panelist Bill Grueskin, an instructor at Columbia Journalism School and long-time reporter, said that the policy change was unwise from its premise.
“The idea that the press just willy nilly goes around blowing top secret stuff that’s going to actually endanger national security was false at its premise,” he said, referencing two recent incidents where journalists knew about the department’s plans before they occurred.
He mentioned the infamous Signal chat, involving The Atlantic editor Jeffrey Goldberg learning about strikes in Yemen, and news organizations’ knowledge of former Venezuelan President Nicolas Maduro’s capture before it happened.
Who is a journalist?
As the lines around who is an isn’t a journalist become more blurry, journalists themselves have tussled over how to define who is a member of their profession — and how they should gatekeep journalism membership organizations.
Grueskin and Deseret News Executive Editor Doug Wilks, responding to a question about the definition of a journalist at the UVU event, cast the net broadly.
“To me, a journalist is someone who is trying to shed light on matters of public interest,” Grueskin said. “And I don’t want to make it sound like it’s only eat your oatmeal, or eight-part series on section 502 housing fraud, journalism. Entertainment journalism is news journalism. Sports journalism is journalism. Metro journalism is journalism.”
Wilks was interested in the effect journalism has on society.
“When people ask me why I became a journalist, I say it’s work worth doing. ... And if you can make society better, if you can make an individual — no matter what they believe or who they are — better and more informed, you can be a quality journalist.
Who or what gives final authority to the freedom of the press?
While the Founders based their country’s free speech protections off England’s 1689 Bill of Rights, its promise to Americans has largely been upheld by the Supreme Court.
As with many controversial First Amendment issues, the recent Pentagon saga will likely end up in the Supreme Court, depending on how the D.C. Circuit rules.
To tell the story of how the Supreme Court came to protect the First Amendment, UVU invited attorney and political commentator Sarah Isgur speak.
It started in 1801, she said, after Thomas Jefferson beat incumbent John Adams in the intensely hostile presidential race of 1800. Adams wanted to make Jefferson’s life difficult, so he signed the Midnight Judges Act into law in his last month in office, Isgur explained.
“Jefferson comes in and takes office, and his first order of business is undo everything that Adams has done and quite quickly finds that he’s run into a real problem, which is all of his judges,” she said.
One of Adams’ commissions (specifically William Marbury’s, a Federalist from Maryland) didn’t get delivered to Jefferson’s Secretary of State, James Madison, in time. So Jefferson blocked it. Marbury consequently sued Madison, creating the famous Marbury v. Madison case.
Adams’ recently nominated Chief Justice, John Marshall, ruled that once a commission is signed, it’s valid. However, he also ruled that the court cannot force the Secretary of State to deliver the commission, so Marbury wasn’t able to assume the position.
Isgur then quoted Marshall in his ruling, when he said it’s the “duty of the judicial department to say what the law is.”
“We’ve basically lived by that ever since,” she said. “That’s a really important case in this idea of having a real third branch of government.”
However, following Marbury v. Madison, President Thomas Jefferson tried to impeach the justices Adams appointed “to show that the Supreme Court should be in line with the president, with Congress and with the political majorities of their time. And so he does just that,” Isgur said.
The House voted to impeach Justice Samuel Chase, then it went to the Senate.
“Members of Jefferson’s own party declined to convict Samuel Chase in that impeachment trial in 1805,” Isgur said. “It is the biggest loss of Jefferson’s presidency. It sets up the Supreme Court as an antagonistic body to Jefferson.”
But more consequently, by refusing to impeach Chase, the Senate created “this cathedral of a third branch of government that did not exist before and would not have existed without having a long-tenured, single person at the helm.”
“If we had switched chief justices every 4 or 8 years as a new president came in, it would have simply reflected similar to Congress,” Isgur said. “It would have reflected the presidency and the political majorities at the moment.”
A counter-majoritarian Supreme Court is what ensures freedom of speech
In a previous interview with the Deseret News, Paul Coleman, the executive director of Alliance Defending Freedom International and author of the book, “Censored,” compared U.S. speech protections with those of other Western countries.
“It’s important to recognize that all of the countries in the Western world have similar provisions (to the U.S.) in their constitutions protecting freedom of speech,” Coleman said. “So the First Amendment doesn’t serve as some magically worded fairy dust of freedom.”
Instead, “it’s really been the U.S. Supreme Court’s interpretation of what that means consistently over the last half century that has made the difference.”
And as Isgur told students at UVU, the fight to uphold the First Amendment started early.