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February 19, 2003


The opinion of the court was delivered by: Paul L. Friedman, District Judge


This matter is before the Court for consideration of defendants' motion to dismiss plaintiffs' amended complaint or, in the alternative, for summary judgment. Plaintiffs previously moved for a preliminary injunction against Secretary of Defense Donald H. Rumsfeld and the United States Department of Defense, alleging that defendants were restraining their First Amendment right to have Hustler Magazine correspondents accompany American troops in combat on the ground in Afghanistan; the Court denied plaintiffs' motion. See Flynt v. Rumsfeld, 180 F. Supp.2d 174 (D.D.C. 2002) ("Flynt I"). After full briefing, the Court heard argument on defendants' motion to dismiss the amended complaint on May 8, 2002. Upon consideration of the arguments of the parties in their papers and in court, the Court grants defendants' motion to dismiss.


A. Plaintiffs' Request for Access

Plaintiffs contend that defendants have refused and continue to refuse to allow them access to the battlefield to report on the activities of U.S. troops engaged in ground combat in Afghanistan, in violation of their First Amendment right. On October 30, 2001, plaintiffs wrote a letter to Assistant Secretary of Defense Victoria Clarke asking that "Hustler correspondents be allowed to accompany and cover American ground forces in Afghanistan and wherever else such forces may be utilized in this campaign against terrorism." Amended Complaint, Ex. A, October 30, 2001, Letter from Larry Flynt to Assistant Secretary Victoria Clarke ("Letter of Oct. 30, 2001") at 2. After receiving no response from defendants, plaintiffs sent a second letter requesting the identical access. See Amended Complaint, Ex. B., November 12, 2001, Letter from Larry Flynt to Assistant Secretary Victoria Clarke ("Letter of Nov. 12, 2001"). On November 15, 2001, defendants transmitted a fax to plaintiffs in response to the two letters, in which Assistant Secretary Clark stated that defendants already had provided "extensive access to military operations thus far in the war on terrorism, " including press coverage of air strikes, humanitarian relief and interviews with U.S. troops serving in the region. See Amended Complaint, Ex. C, November 15, 2001, Fax from Assistant Secretary Victoria Clarke to Larry Flynt ("Fax of November 15, 2001" or "Fax"). She also explained that:

A particular challenge right now is that the only U.S. troops on the ground in Afghanistan are small numbers of servicemen involved in special operations activity. The highly dangerous and unique nature of their work makes it very difficult to embed media. We're exploring many options, however, and remain hopeful that we can facilitate some aspect of special operations activities.

Id. Assistant Secretary Clarke provided plaintiffs with the contact information for Commander Jeff Alderson, the commander in the region who was coordinating media requests. Id. At the time of the hearing on the motion for preliminary injunction, plaintiffs had not contacted Commander Alderson to make arrangements for sending a correspondent to the region.

After the Court denied plaintiffs' request for a preliminary injunction but before plaintiffs filed the amended complaint, plaintiffs wrote Assistant Secretary Clarke another letter, again requesting access to actual battlefield combat activities subject to "any such regulations reasonably deemed necessary to advance military operational security in a material way." Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Defs.' Mot."), Ex. A, January 15, 2002, Letter from Larry Flynt to Assistant Secretary Victoria Clarke ("Letter of Jan. 15, 2002") at 2. In this letter, plaintiffs stated that they had not contacted Commander Alderson as suggested in the Fax of November 15, 2001 because they had not requested the type of access defendants had indicated was available. Rather, plaintiffs asserted, they "specifically requested reporter access to actual battlefield combat activities," and specifically renewed their request to have a reporter "accompany ground troops in order to cover actual combat activity carried out in connection with the current military campaign known as Operation Enduring Freedom." Id. In response to this letter and a follow-up letter plaintiffs sent on January 30, 2002, defendants reiterated their position that they are willing to provide "extensive access to [U.S.] operations" and that the Hustler correspondent just needs to "work with our people on the ground." Defs.' Mot., Ex. C, February 4, 2002, Letter from Assistant Secretary Victoria Clarke to Larry Flynt ("Letter of Feb. 4, 2002"). With this letter, defendants sent plaintiffs a two-page list of public affairs contacts in the military in connection with Operation Enduring Freedom, with telephone numbers and email addresses, so that plaintiffs could arrange for access to U.S. troops. See id.

Several weeks later, responding to an email requesting access to U.S. ground troops engaged in combat operations, Lt. Colonel Bonnie Hébert emailed Roger Wilcox, plaintiffs' counsel, to obtain additional details about plaintiffs' request. See Supplemental Memorandum in Support of Defendants' Motion to Dismiss ("Defs.' Supp. Mem."), Ex. A, February 22, 2002, Email from Lt. Colonel Bonnie Héebert to Roger Wilcox ("Email of Feb. 22, 2002"). On March 2, 2002, Sergeant Aaron Lawrence emailed Mr. Wilcox setting forth some options for placing a reporter in Afghanistan, which included details on the locations at which a reporter would be most likely to have the opportunity to embed with combat soldiers. See Defs.' Supp. Mem., Ex. B, March 2, 2002, Email from Sergeant Aaron Lawrence to Roger Wilcox ("Email of March 2, 2002").

On March 8, 2002, David Buchbinder, a correspondent reporting on the conflict in Afghanistan for Hustler, emailed Sergeant Lawrence explaining that he wanted to stay with soldiers stationed at military bases in Afghanistan and accompany troops on combat missions. See Defs.' Supp. Mem., Ex. C, March 8, 2002, Email from David Buchbinder to Sergeant Aaron Lawrence ("Email of March 8, 2002"). Mr. Buchbinder also requested additional contact information for military media liaisons on the ground in Afghanistan. See id. Defendants provided this contact information to plaintiffs in a letter from Lt. Colonel Hébert to Allen MacDonell of LFP, Inc. and again indicated the likely location of combat troops with which Mr. Buchbinder could embed. See Defs.' Supp. Mem., Ex. D, March 15, 2002, Letter from Lt. Colonel Bonnie Hébert to Allen MacDonell ("Letter of March 15, 2002").

On May 7, 2002 Mr. Buchbinder filed an affidavit in this action stating that he was in Afghanistan on Bragram Air Base, and had placed himself on the requisite waiting list for journalists requesting access to conventional combat missions. See Plaintiff's Motion for Leave to File Supplemental Affidavit of David Buchbinder in Support of Their Response to Defendants' Supplemental Memorandum in Support of Defendants' Motion to Dismiss, Ex. A, Declaration of David Buchbinder ("Buchbinder Aff.") ¶¶ 1, 12. Mr. Buchbinder also stated that he had made a request to the appropriate authority to accompany special forces operations, and had been informed by Major Bryan Hilferty that Defense Department officials were awaiting approval from the United States to allow reporters to accompany special forces on missions. See id. ¶¶ 24, 35. If the Defense Department received approval, Major Hilferty informed Mr. Buchbinder, the major would consult the same waiting list created for journalists wishing to embed with conventional combat troops, on which Mr. Buchbinder currently was listed, in order to determine which reporters would accompany special forces on their missions. See id. ¶ 37. At the time of his affidavit, Mr. Buchbinder had not accompanied soldiers on any missions, although he had received word from defendants that specific efforts were being made to place him with ground troops and that his placement on the list was rising. See id. ¶¶ 40-46.

B. Department of Defense Directive 5122.5

Defendants announced the Defense Department's policy on media access in Department of Defense Directive Number 5122.5. See Defendants' Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction ("Defs.' Pl Mem."), Ex. B, Department of Defense Directive 5122.5 (Sept. 27, 2000). The Directive confers on the Assistant Secretary of Defense for Public Affairs the responsibility of ensuring "a free flow of news and information to the news media [and] the general public, . . . limited only by national security constraints" and outlines the Assistant Secretary's responsibilities, functions and authority. Id. ¶¶ 3.2, 1. Enclosures 2 and 3 to the Directive "delineate principles that guide the Department regarding public access to information and media coverage of DoD activities." Id. ¶ 3.2.

Enclosure 2 is entitled "Principles of Information." Enclosure 3, entitled "Statement of DoD Principles for News Media," affirms that "[o]pen and independent reporting shall be the principal means of coverage of U.S. military operations." See Defs.' Pl. Mem., Ex. B, Department of Defense Directive 5122.5, Enclosure 3, Statement of DoD Principle for News Media ("Enclosure 3") ¶ E3.1.1. Under conditions of open coverage, "field commanders should be instructed to permit journalists to ride on military vehicles and aircraft when possible." See id. ¶ E.3.1.7. While media pools may be used, in which "a limited number of news media [represent] a larger number of news media organizations for news gatherings and sharing of material during a specified activity," they "are not to serve as the standard means of covering U.S. military operations." See id. ¶ E3.1.2. Journalists "in a combat zone shall be credentialed by the U.S. military and shall be required to abide by a clear set of military security ground rules that protect U.S. Armed Forces and their operations." See id. ¶ 3.1.4. Journalists "shall be provided access to all major military units," but "[s]pecial operations restrictions may limit access in some cases." See id. ¶ E.3. 1.5. News organizations "shall make their best efforts to assign experienced journalists to combat operations and to make them familiar with U.S. military operations." See id. ¶ E.3.1.4.

At the heart of this action lies plaintiffs' charge that Department of Defense Directive 5122.5 and Enclosure 3 in particular violate a First Amendment right — or a "qualified First Amendment right of media" access to the battlefield. Plaintiffs' claims fall into two distinct categories: (1) claims charging that defendants violated plaintiffs' First Amendment right while operating under Enclosure 3 by improperly denying a Hustler correspondent the right to accompany combat forces on the ground in Afghanistan (the "as-applied" claims); and (2) claims asserting that Enclosure 3 is facially unconstitutional under the First and Fifth Amendments (the "facial challenge" claims).


A. Motion to Dismiss

A motion to dismiss should not be granted unless plaintiffs can demonstrate no set of facts that supports their claim entitling them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1117 (D.C. Cir. 2000). In evaluating the motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiffs. See Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997). While the complaint is to be construed liberally, the Court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept the plaintiffs' legal conclusions. See National Treasury Employees Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996); Kowal v. MCI Communication Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

Although a district court may dispose of a motion to dismiss on the basis of the complaint alone, a court may consider materials beyond the pleadings when evaluating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed fact plus the court's resolution of disputed facts." Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). This Court has interpreted Herbert to allow a court to "consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections and Ethics, 104 F. Supp.2d 18, 22 (D.D.C. 2000) (Kennedy, J.) (citing Herbert v. National Academy of Sciences, 974 F.2d at 197), aff'd Scolaro v. D.C. Bd. of Elections and Ethics, No. ...

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