Security reviews of media reports on military operations: a response to Professor Lee.

Author:Wilcox, William A., Jr.
Position:William E. Lee, Harvard Journal of Law and Public Policy, vol. 25, p. 743, 2002
  1. CASE LAW ON MEDIA ACCESS II. THE ROLE OF SECURITY REVIEWS IN PROTECTING THE MILITARY MISSION III. A PRUDENT APPROACH TO MILITARY/ MEDIA RELATIONS IV. CONCLUSION Professor William E. Lee argued in a recent article in this journal that military security reviews of media reports as practiced during the Persian Gulf War and Operation Enduring Freedom were inconsistent with First Amendment freedoms. (1) In his article, Professor Lee conceded "the notion that the First Amendment right of access developed by the Supreme Court in the context of judicial proceedings does not transfer to wartime military operations." (2) However, he drew the questionable conclusion that "[p]reventing access to places or government information is less harmful to free expression than government action that prevents or punishes publication of information the press has acquired." (3) In making his argument, Professor Lee questioned the assertion of mine in a 1995 article that security reviews were an acceptable means for the military to control the release of sensitive information for national security purposes. (4)

    Professor Lee was correct in his assertion that the military may limit media access to the battlefield. Although litigation on behalf of media organizations has not resulted in a definitive decision regarding media access to the battlefield, (5) there is a line of cases that establishes that the government may limit access to activities when there is a compelling interest to do so. (6) The cases addressing the government's control of information under certain compelling circumstances lead to the unavoidable conclusion that the military's press restrictions, such as security reviews, are constitutionally permissible. Further, conditioning media access to military operations on military security reviews is a longstanding tradition in combat journalism and an important tool for the military to use to ensure that the security of operations not be compromised. Certainly the military should apply this tool judiciously, so as not to interfere unduly with fair reporting of the news. However, to simply limit reporters' access to information or establish ground rules for reporting information about operations, as Professor Lee suggests, (7) and then to trust the media to follow those ground rules is, from both a public policy and an operational security standpoint, worse than the security reviews. Instead, the military must follow a consistent policy regarding handling of media during military operations, including security reviews as necessary, but allowing as much media access as possible under operational circumstances. Certainly there is a tension at times between the media's desire to report the news and the military's need to control sensitive information; nevertheless, in instances when that tension exists, the discretion of the commander in the field to determine how and when to control information must prevail.


    "Due to the reluctance of the press to sue the government during wartime," Professor Lee wrote, "judicial involvement in the relationship between the press and the military is highly unlikely." (8) However, the media have not shown such a reluctance to sue the military over access. (9) Rather, the abbreviated nature of recent international conflicts and the mootness doctrine have combined to limit judicial intervention in the media-military relationship. During the invasion of Grenada in 1983, for instance, the media were outraged after being kept off the island for two days following the initial invasion. (10) Hustler magazine publisher Larry Flynt took the military to court seeking a declaratory judgment and injunctive relief, but the case was dismissed as moot. (11) The district court further determined that the case did not meet the requirements of the "capable of repetition, yet evading review" exception to the mootness doctrine, because there was no "reasonable expectation" that the controversy would recur. (12) The court elaborated further that, even if the case were a live controversy, the court would not issue an injunction, because it would "limit the range of options available to the commanders in the field in the future, possibly jeopardizing the success of military operations and the lives of military personnel and thereby gravely damaging the national interest." (13)

    Because of press restrictions during the Persian Gulf War, members of the media brought an action against the military seeking declaratory judgment and injunctive relief. (14) Nation Magazine and others contended that pool reporting regulations violated the First Amendment by inhibiting newsgathering. In Nation Magazine, the district court determined that the plaintiffs met the "capable of repetition, yet evading review" test, and refused to dismiss the case as moot. (15) However, the conclusion of the war rendered moot any claims for injunctive relief. (16) The court also refused to grant a declaratory judgment, stating: "[s]ince the principles at stake are important and require a delicate balancing, prudence dictates that we leave the definition of the exact parameters of press access to military operations abroad for a later date when a full record is available, in the unfortunate event that there is another military operation." (17) Security review procedures were not challenged in the suit.

    While cases specifically addressing media access to the battlefield have not been conclusive, commentators have argued that the media have a constitutional right of access to the battlefield. (18) In support of this view they look to Branzburg v. Hayes, (19) in which the United States Supreme Court noted that "protection for seeking out the news" was critical to First Amendment freedom of the press. (20) Nevertheless, the Court held that a reporter could be compelled to reveal a confidential source to a grand jury, because the government has a compelling interest in investigating crimes. (21)

    Whatever encouragement Branzburg may have provided to proponents of a right of access, however, was dampened in a series of cases involving media access to prisons and jails. In Pell v. Procunier (22) and Saxbe v. Washington Post, (23) the Court held that the Constitution does not require the government to grant press access to information not available to the public generally. In both cases, government regulations limiting reporters' access to prisoners were upheld. In Houchins v. KQED, (24) the Court further determined that the First Amendment does not mandate a fight of access to government information or sources of information, and that there is no constitutional right of access to county jails. (25)

    A series of cases that considered press access to courtrooms followed the prison cases. Beginning with Richmond Newspapers v. Virginia, (26) the Court recognized a media right of access to criminal trials. (27) That fight was no greater, however, than the general public's right to attend criminal trials. (28) Further, the Richmond Newspapers Court recognized the need for open trials as a means of assuring that the government is conducting fair trials. (29) Therefore, closing trials to the media not only involves the right of a free press, but the Sixth Amendment right of the accused to a public trial. (30)

    Two years later, Globe Newspaper Co. v...

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