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GETTY IMAGES NEWS SERVICES, CORP v. DEPARTMENT OF DEFENSE

March 7, 2002

GETTY IMAGES NEWS SERVICES, CORP., PLAINTIFF,
V.
DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates, United States District Judge.

MEMORANDUM OPINION

Plaintiff Getty Images News Services, Corp. ("Getty") has raised a First Amendment and equal protection challenge to the alleged exclusion of Getty by the Department of Defense and other defendants (collectively "DOD") from full and fair participation in press coverage of Operation Enduring Freedom. Getty is a reputable press organization that produces over 100,000 photographs annually for subscribers such as Time and Newsweek. It has moved for a preliminary injunction seeking (1) to enjoin DOD from continuing to exclude it from participation in the DOD National Media Pool; (2) to enjoin DOD from continuing to exclude it from participation in any ad hoc (or regional) pools*fn1 created during Operation Enduring Freedom, including the regional pool for Afghanistan; and (3) to enjoin DOD to provide it with equal access (and to require DOD to promulgate standards and procedures ensuring equal access) to the detention activities at Guantanamo Bay Naval Base. DOD has moved to dismiss Getty's claims concerning alleged exclusion from the National Media Pool and the Afghanistan regional pool for lack of jurisdiction. For the reasons stated below, Getty's motion for a preliminary injunction is denied and DOD's partial motion to dismiss is granted.*fn2

Factual Background

The factual scenario presented to the Court has evolved considerably since Getty commenced this litigation on January 31, 2002. Initially, in its Complaint and accompanying motion for a temporary restraining order and preliminary injunction, Getty alleged that during Operation Enduring Freedom, DOD had established and utilized a DOD National Media Pool and ad hoc pools in Afghanistan and Guantanamo Bay to regulate press access to ongoing military operations. Getty contended that it had been excluded from the National Media Pool and the ad hoc pools without justification, and that it had been denied receipt of the work product of those pools by pool members (who are Getty's competitors) acting under DOD authorization. Getty described lengthy communications between it and DOD officials from late November 2001 through January 2002 illustrating that, while DOD had not expressly rejected Getty's attempts to secure membership in the National Media Pool and the ad hoc pools, DOD had effectively denied Getty such membership by failing to respond to Getty's repeated inquiries.
One of the specific challenges raised by Getty was the alleged failure of DOD to include Getty among press representatives flown to Guantanamo Bay to cover the detention operations there. Getty alleged that it had not been included in an ad hoc pool established at Guantanamo Bay and that it had been denied the products of the visits to Guantanamo Bay by its competitors who had been granted access. Getty alleged that DOD had failed to establish adequate rules and procedures covering the creation and operation of the press operations for Guantanamo Bay and elsewhere.
Getty framed several constitutional challenges to its alleged treatment by DOD. Getty claimed that DOD's actions constituted violations of: (a) Getty's First Amendment right to equal access; (b) Getty's Fifth Amendment right to equal protection; (c) Getty's First and Fifth Amendment rights because adequate regulatory standards had not been developed and applied; and (d) Getty's due process rights under the Fifth Amendment because Getty's competitors had allegedly been delegated the power to regulate Getty's access to pool coverage.
In opposing Getty's motion for a temporary restraining order, DOD demonstrated that the facts alleged in Getty's Complaint and motions were inaccurate. DOD explained that the National Media Pool had not been activated during the course of Operation Enduring Freedom. Declaration of Timothy Taylor ¶ 4 (executed on February 6, 2002). DOD also represented that the regional media pool set up in connection with operations in Afghanistan had been discontinued in December 2001, and that no other regional or ad hoc media pool was in operation or planned. Since late December 2001, DOD stated, the media has been able to provide open, independent news coverage in Afghanistan. Taylor Dec. ¶ 4. DOD also submitted an internal memorandum containing detailed procedures and rules for administering the National Media Pool, including a list of criteria for pool membership. Taylor Dec. Exhibit 1.
In addition, DOD addressed Getty's alleged exclusion from access to Guantanamo Bay, a United States military base accessible only by military transport. DOD explained that no pool was in effect for Guantanamo Bay and that news organizations were being allowed to provide independent coverage.*fn3 Taylor Dec. ¶ 6. DOD further stated that because of the limited physical access to Guantanamo Bay, DOD was coordinating a rotation of news media representatives. Taylor Dec. ¶ 5. As of February 6, 2002, seven flights to Guantanamo Bay had transported approximately twenty news media representatives per flight. Taylor Dec. ¶ 5. DOD explained that, in allocating space on flights to Guantanamo Bay, the responsible military command was attempting to provide a mix of media, with emphasis on those media organizations reaching a broad audience. Taylor Dec. ¶ 7 & Exhibit 3. Moreover, DOD represented that a Getty representative was on the February 6 flight to Guantanamo Bay, and was scheduled to remain there until February 8. Taylor Dec. ¶ 7.
In a Memorandum Opinion issued February 8, 2002, the Court denied Getty's motion for a temporary restraining order. The Court noted that, in light of the facts that the media pools that Getty was challenging were not operational and that Getty had been placed on a flight to Guantanamo Bay, Getty had not demonstrated immediate irreparable injury that warranted an injunction pending the expedited resolution of Getty's motion for a preliminary injunction.*fn4
Following the Court's denial of Getty's motion for a temporary restraining order, the facts evolved further. At the preliminary injunction hearing on February 21, 2002, counsel informed the Court that Getty had been granted membership in the National Media Pool the previous day. DOD also informed the Court that media flights were traveling to Guantanamo Bay at a rate of about two per week, and that to date approximately 300 media organizations had expressed an interest in going to Guantanamo Bay. At the hearing, DOD articulated four principles that guide the allocation of space on the media flights to Guantanamo Bay: (1) DOD seeks a mix of media types (e.g., television, print, radio, wire services) on the flights; (2) DOD gives some preference to media organizations that consistently reach large audiences; (3) DOD seeks to send international media organizations because the government has an interest in reaching a worldwide audience in matters concerning the war on terrorism; and (4) DOD seeks to send regional news media because the detention activities at Guantanamo Bay are, in part, a regional news story.*fn5 Although DOD had not revealed the latter two criteria in its written submissions to the Court, DOD represented at the hearing that all four criteria, and only those four criteria, had been used in allocating media space for flights to Guantanamo Bay since the commencement of the flights in early January 2002. DOD conceded that neither the four criteria nor any other standards for allocating access to Guantanamo Bay are written or published. DOD also conceded that there are no formal procedures by which DOD gathers information relevant to the evaluation of a particular media organization under these criteria. Rather, DOD explained, decisions are generally made by a DOD Public Affairs Officer based upon his general knowledge and expertise in public affairs and, occasionally, based upon information received through informal inquiries of media organizations.

I. DOD's Motion to Dismiss

DOD has moved to dismiss Getty's claims challenging its alleged exclusion from the National Media Pool and the Afghanistan regional media pool on the basis that Getty lacks standing.*fn6 The standing doctrine, of course, derives from the constitutional requirement that federal courts may only adjudicate actual "cases" and "controversies." Allen v. Wright, 468 U.S. 737, 750 (1984). In order to bring a case in federal court, a plaintiff bears the burden of establishing the three elements of standing:

First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotations and citation omitted). With respect to Getty's challenge to its alleged exclusion from the National Media Pool, it is clear that Getty does not have standing. Prior to the hearing on the preliminary injunction, Getty was granted the principal relief it had sought — membership in the National Media Pool. Moreover, the National Media Pool was never activated between the time that Getty first made efforts to apply to the National Media Pool and the time that Getty was accepted into the pool. Consequently, Getty cannot demonstrate that it suffered an "injury in fact" because of any alleged delay by DOD in reviewing Getty's application to the National Media Pool, and nothing this Court could do would redress the injury Getty claimed — exclusion from the National Media Pool — now that Getty has been admitted.
So, too, Getty's claims with respect to its alleged exclusion from the National Media pool are effectively moot. In order for a case to be justiciable, "`an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.'" Fraternal Order of Police, D.C. v. Rubin, 134 F. Supp.2d 39, 41 (D.D.C. 2001) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). Because Getty has been admitted into the National Media Pool and does not appear to be pressing any ...

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