## Facts

- After the September 11, 2001 attacks, the U.S. military began combat operations in Afghanistan as part of Operation Enduring Freedom.
- Larry Flynt and L.F.P., Inc., publisher of *Hustler*, requested that its correspondents be permitted to accompany U.S. ground troops on combat missions and be given access to the theater of operations.
- The Department of Defense responded that embedding with ground troops was not then feasible because the only U.S. troops on the ground were small numbers of special operations personnel whose missions were highly dangerous and difficult to accommodate for media presence.
- The Department indicated that many reporters had covered air strike operations and that significant access existed through command briefings and other channels; it also provided a point of contact for access to air and naval operations.
- Flynt filed suit seeking declaratory and injunctive relief, challenging the delay/denial of embedding access and alleging that DOD Directive 5122.5 governing media access was unconstitutional on its face and as applied.

## Issues

1. Whether the First Amendment creates a constitutional right for the press to accompany (embed with) U.S. military units in combat operations.
2. Whether DOD Directive 5122.5 regulating media access to military operations is facially unconstitutional under the First Amendment.
3. Whether Flynt could maintain as-applied challenges based on the Department’s response and the asserted delay in granting access.

## Decision

- The D.C. Circuit affirmed the dismissal of Flynt’s claims, but on different grounds than the district court.
- The court held that the First Amendment does not grant the press a constitutional right of special access to accompany U.S. forces into combat.
- Because the claimed constitutional entitlement did not exist, Flynt’s facial and as-applied challenges to DOD Directive 5122.5 failed.
- The court did not rely on the district court’s ripeness and standing analysis to resolve the appeal.

## Legal Principles

- The First Amendment protects freedom to publish and generally does not grant the press a constitutional right of access to information or locations not available to the public at large.
- The access framework recognized for criminal proceedings does not extend to create a constitutional right for the press to attend or physically accompany battlefield combat operations.
- Decisions about whether, when, and under what conditions to permit press presence with combat units are committed to military and political-branch judgment, particularly where operational security and safety are implicated.
- A media-access directive that facilitates reporting subject to operational and safety limitations is not rendered unconstitutional merely because it does not guarantee embedding with combat forces.

## Conclusion

The court rejected the asserted First Amendment right to embed with U.S. combat units and, on that basis, upheld the Department of Defense’s media-access policy against facial and as-applied constitutional challenges, leaving embedding decisions to military discretion subject to general constitutional constraints.


Flynt v. Rumsfeld, 355 F.3d 697 (D.C. Cir. 2004)