United States District Court, District of Columbia
January 8, 2002
LARRY FLYNT AND LFP, INC., PLAINTIFFS,
DONALD H. RUMSFELD, SECRETARY OF DEFENSE, AND UNITED STATES DEPARTMENT OF DEFENSE, DEFENDANTS.
The opinion of the court was delivered by: Paul L. Friedman, District Judge.
MEMORANDUM OPINION AND ORDER
This matter came before the Court for a hearing on plaintiffs'
motion for preliminary injunction. Plaintiffs Larry Flynt and
LFP, Inc. seek a preliminary injunction against Donald H.
Rumsfeld, the Secretary of Defense, and the United States
Department of Defense, restraining them from prohibiting or
interfering with plaintiffs' asserted First Amendment right to
have Hustler Magazine correspondents accompany American troops
on the ground in Afghanistan. In particular, plaintiffs seek
permission to observe first-hand United States troops engaged in
combat and to report news of these military activities to the
American people, subject to "reasonable and necessary reporting
restrictions intended to advance military operational security
in a material way." The defendants oppose any such injunction on
a variety of grounds, including the ground that judicial review
of military decisions with respect to media access to the
battlefield may be inappropriate.
On a motion for a preliminary injunction, plaintiffs must
demonstrate that they have a substantial likelihood of
succeeding on the merits of the case and that they will suffer
irreparable injury absent an injunction. The Court must also
consider the harm to defendants or other interested parties
(balance of harms), and whether an injunction would be in the
public interest or at least not be adverse to the public
interest. See Al-Fayed v. CIA, 254 F.3d 300, 303 (D.C.Cir.
2001); Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1208
(D.C.Cir. 1989); Washington Metro., Area Transit Comm'n v.
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir. 1977); Milk
Industry Foundation v. Glickman, 949 F. Supp. 882, 888 (D.C.
Plaintiffs are not required to prevail on each of these
factors. Rather, the factors must be viewed as a continuum, with
more of one factor compensating for less of another. "If the
arguments for one factor are particularly strong, an injunction
may issue even if the arguments in other areas are rather weak."
CityFed Fin. Corp. v. Office of Thrift Supervision,
58 F.3d 738, 747 (D.C.Cir. 1995). An injunction may be justified "where
there is a particularly strong likelihood of success on the
merits even if there is a relatively slight showing of
irreparable injury." Id. Conversely, when the other three
factors strongly favor interim relief, a court may grant
injunctive relief when the moving party has merely made out a
"substantial" case on the merits. See Washington Metro. Area
Transit Comm'n v. Holiday Tours, Inc., 559 F.2d at 843-45. In
sum, an injunction may be issued "with either a high probability
of success and some injury, or vice versa." Cuomo v. United
States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C.Cir.
1985). In this case, however, plaintiffs have failed to
The Court is 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 involving United States military operations on
foreign soil subject to reasonable regulations
to protect the safety and security of both the journalists and
those involved in those operations, as well as the secrecy and
confidentiality of information whose dissemination could
endanger United States soldiers or our allies or compromise
military operations. See The Nation Magazine v. United States
Department of Defense, 762 F. Supp. 1558, 1571-74 (S.D.N.Y.
1991). The specific parameters of this First Amendment
"qualified right of access" and the adequacy under the Due
Process Clause of the guidelines and regulations promulgated by
the Department of Defense to implement that right would depend
upon the particular circumstances presented. See JB Pictures,
Inc. v. Department of Defense, 86 F.3d 236, 238-39 (D.C.Cir.
1996). Whether plaintiffs in this case are likely to succeed on
the merits, however, is far from clear.
As defendants point out, it does not appear that plaintiffs
have in fact been denied the access they seek or that they
necessarily would have been denied such access if they had
pursued the matter fully through available military channels. It
is true that by letter of November 7, 2001, Assistant Secretary
of Defense Victoria Clarke offered plaintiffs only media access
for the coverage of air strikes and humanitarian drops and the
interview of service persons in the region and not permission to
accompany ground troops on combat missions; but she never denied
plaintiffs' request either. See Complaint, Ex. C, November 7,
2001, Letter from Assistant Secretary Victoria Clarke to Larry
Flynt. Rather, she indicated that the only U.S. troops on the
ground at that time were involved in "special operations
activity," making it difficult for the media to accompany troops
on combat missions; but she also said that the Department of
Defense would attempt to allow greater access to ground troops
as conditions in Afghanistan evolved. Id. She further advised
Mr. Flynt to contact Commander Jeffrey Alderson to make
arrangements for some form of access — admittedly, not the
precise type of access plaintiffs sought. See id. Plaintiffs
chose not to pursue this avenue but filed this lawsuit instead.
Based on the record as it currently stands, therefore, the Court
cannot find that the Department of Defense has denied
plaintiffs' request for access and, in view of changed
circumstances, cannot say that any such request would not have
been granted — or would not now be granted — at least in part.
As Commander Alderson states in his declaration of December
10, 2001, "[t]he military situation in and around Afghanistan
has been a rapidly changing, fluid environment and so the
support for press coverage has also passed through several
phases. . . . [Today] representatives of American news media, as
well as foreign journalists, are present in Afghanistan and are
providing extensive coverage of Operation Enduring Freedom."
Defendants' Memorandum in Opposition to Plaintiffs' Motion for
Preliminary Injunction, Ex. E, Declaration of William Jeffery
Alderson ¶¶ 3, 5. Press reports of November 27 and December 9,
2001 (and presumably others) indicate that members of the press
recently have been allowed to accompany U.S. troops on the
ground in Afghanistan, although it is unclear whether these
journalists have been permitted to witness actual combat
conditions. See, e.g., Lee Hill Kavanaugh, Soldiers in
Chaotic Land Kindle Harmony at Home, Kansas City Star, Dec. 9,
2001, at Al; Reporters Accompany Marines; First Allowed by
Pentagon to Cover Combat, Commercial Appeal, Nov. 27, 2001, at
A6. Obviously, a great deal has changed in the ever-evolving
situation since Assistant Secretary Clarke's letter to Mr. Flynt
of November 7, coverage of troop activities in Afghanistan in
the intervening weeks has increased, and the media
now has some level of open access to American troops on the
ground in Afghanistan. Thus, it is not certain that a request
for access by plaintiffs, if one were made, would be denied at
So far as appears, plaintiffs have the same right of access to
military operations in Afghanistan as do other members of the
media. As discussed above, media access has increased in recent
weeks, and plaintiffs have failed to demonstrate how or whether
the defendants now would deny access to them. Plaintiffs
therefore have failed to demonstrate that they will suffer
irreparable harm in the absence of a preliminary injunction.
Furthermore, in the absence of a stronger showing by plaintiffs,
the balance of harms and the public interest weigh heavily in
defendants' favor. The Department of Defense has expressed,
albeit somewhat vaguely and with minimal detail, its commitment
to providing the media with open access to military operations
in Afghanistan, consistent with operational and security
concerns, and the media in fact has enjoyed increased access
since this lawsuit was filed. Whether defendants are doing
enough to satisfy the First Amendment or the Due Process Clause
are questions that will have to await the development of a
fuller record. On the facts and circumstances presented at this
stage, however, plaintiffs have failed to demonstrate their
entitlement to injunctive relief. For all of these reasons, it
ORDERED that plaintiffs' request for a preliminary injunction
is DENIED. The parties are encouraged to agree on an expedited
briefing and argument schedule for consideration of the
defendants' motion to dismiss or for summary judgment.
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