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