A federal judge in Washington will not immediately block the Pentagon’s move to fire three journalists at the federally funded but independent military news organization Stars and Stripes.
The ruling is an opening victory for the Pentagon’s efforts to exert control over the newspaper, which started publishing during the Civil War and has a long history of independent reporting.
Erik A. Slavin, the paper’s editor in chief; Lara S. Korte, its Middle East correspondent; and Max D. Lederer Jr., the paper’s publisher, accused the government of violating their First Amendment right to free speech. They asked the court to reject their terminations as well as new Pentagon policies that they say severely limit the editorial independence of their work.
The journalists also said their firings were related to their coverage of the worsening conditions on the U.S.S. Abraham Lincoln, a Navy aircraft carrier that had been deployed to the Middle East for over nine months.
In July, CBS News interviewed Mr. Slavin and Ms. Korte for a news segment on accusations of editorial interference at Stars and Stripes. Mr. Lederer, who had given Mr. Slavin and Ms. Korte permission for the CBS interview, refused to fire them despite the Pentagon’s urging. Amid continued pressure, Mr. Lederer announced that he would soon retire and issued public statements on his strife with the Defense Department’s leadership. He was then served a termination notice.
In a hearing on Friday morning, Taryn Wilgus Null, a lawyer with Democracy Defenders Fund representing the Stars and Stripes employees, argued that her clients were speaking as “private citizens about a matter of public concern,” and therefore, their comments deserved the full protection of the First Amendment.
In a 24-page ruling, Judge Trevor N. McFadden of the Federal District Court in Washington reasoned that the public remarks by Mr. Slavin, Ms. Korte and Mr. Lederer “suggest that they spoke as part of their official duties and not as private citizens.” “They are thus unlikely to succeed on the merits of their First Amendment claim,” he wrote.
Judge McFadden also rejected arguments that the journalists’ firings would cause a broader chilling effect among federal workers and federally funded news organizations, writing that “public employees are (or should be) aware that they are not free to speak as they like when conducting their official duties.”
The three employees received termination notices on Aug. 21 and were given a five-day period to challenge the action. The Pentagon, however, agreed not to finalize their dismissals before Friday, a step that Judge McFadden’s decision now allows it to take.
Judge McFadden’s ruling rejected only an initial emergency order halting the personnel actions, noting that the plaintiffs had to meet “a heavy burden” of proof to have such an order approved. But Judge McFadden, who was nominated to the court by President Trump early in his first term, appeared skeptical of the lawsuit’s merits.
“Perhaps discovery will strengthen plaintiffs’ case,” Judge McFadden wrote. “But at bottom, on the current record, plaintiffs’ real complaint seems to be that they were victims of a cruel bait-and-switch. They are being fired for giving pre-approved interviews on their paper’s behalf in which they largely toed the company line. Whatever else such a scheme may violate, it does not clearly offend the First Amendment.”
Judge McFadden was also skeptical of the journalists’ argument that they were fired in retaliation for writing about the deteriorating morale on the U.S.S. Abraham Lincoln.
Judge McFadden wrote that “the U.S.S. Lincoln piece was written by a reporter other than Korte, and plaintiffs do not contend that Slavin or Lederer were directly involved,” adding that “plaintiffs themselves allege that Lederer had already received criticism related to the CBS News interview before publication of the U.S.S. Lincoln story. And the Department’s declarant states that the notices for Slavin and Korte were completed on Aug. 6, also prior to the story.”
In a statement, the three Stars and Stripes employees expressed disappointment in the ruling and noted that the broader case “remains unresolved.”
“We continue to believe that the Pentagon should not be able to fire journalists for speaking out against censorship and defending the editorial independence of Stars and Stripes,” they said in the statement.
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