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National Security and the Press Part Five – Constitutionality of Restraints on Coverage

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One other significant problem for freedom of reporting is that despite the existence of guidelines for how embedded reporters should be treated, the individual experience of reporters can be largely controlled by the local commander in charge of them. In fact, during the first Persian Gulf War, the informal restrictions imposed on some journalists were so onerous that they were unable to transmit any information until after the conclusion of the conflict. Sherry Ricchiardi, Preparing for War, AMERICAN JOURNALISM REVIEW, March 2003. Even in the recent Iraq War with a stated policy of encouraging freedom of reporting, many commanders did not honor the spirit of the program and imposed their own restrictions on coverage. Jack Shafer, Embeds and Unilaterals, SLATE, May 1, 2003. This potential for local veto over coverage is especially disturbing given that one of the primary benefits of embedded journalism programs is supposedly the ability of embedded reporters to perform their watchdog functions on the ground. If a local commander can make snap decisions to restrict access, the benefit in terms of deterring or monitoring potential atrocities or violations of the rules of warfare is minimized. Only a unit that knows that all of its activities could be reported will be restrained by the presence of an embedded journalist.

The embedded reporter program creates problems for the independence of the press even outside of those who are members of the program. During the Iraq War, the embedding program created a “credentialing” system in which members of the media were only considered officially acceptable if they were embeds. Id. This resulted in a backlash against non-embedded reporters, who “were often treated as pests with no right to the battlefield . . . [i]n many instances, the military prevented unilaterals from covering the war.” Id. This informal credentialing system is a disturbing development that threatens to erase any contributions that embedded journalism could make to the media’s ability to freely and accurately cover wartime events.

IV. Constitutionality of Restrictions on Coverage

Embedded journalists in Iraq were forced to comply with a number of restrictions on their movements, actions, and coverage of the war. These restrictions were wide-ranging, placing specific limitations on what kinds of information could be released by journalists and on what activities they could perform in search of information. The existence of prior restrictions on the ability of journalists to discuss and report on specific activities raises First Amendment questions and, even if it is not unconstitutional, should be analyzed and critiqued to determine their effect on the freedom of the press. The rules that embedded reporters were expected to comply with arguably compromise their integrity and would violate the First Amendment for those who, like Justice Douglas, believe that “no law” means no law. Reporters were not allowed to travel independently, restricting their ability to verify information they were given or seek outside information on the events they witnessed with their units. See Jenson at 22. Interviews had to be conducted on the record, decreasing the likelihood that soldiers would give up unapproved information to the journalist for fear of reprisal. Id. Officers were permitted to censor or temporarily restrict electronic transmissions. Id. There were also several reporters who were removed from their units for “allegedly giving too much information about troop locations on television.” Id. The Pentagon issued a long list of guidelines of information that embedded reporters were prohibited from broadcasting. Reporters were always subject to local restrictions by the commanding officer. Id. While there would certainly be good reason in many situations to prevent specific pieces of information from being broadcast, the restrictions likely also encompassed a great deal of information whose publication would make no difference to the war effort.

Under Justice Douglas’ literal view of the First Amendment, it is plain that these regulations should be unconstitutional. If no law means absolutely no restrictions, then military control over the ability of embedded journalists to file their reports is plainly unconstitutional. Other, more permissive scholars of the First Amendment might apply the Court’s tiers of scrutiny to determine whether the restrictions served a compelling government interest. For a fairly recent judicial outline of these tiers of scrutiny in application, see Madsen v. Women’s Health Center, 512 U.S. 753, 761-66 (1994). While Justice Douglas’ absolutist view is not generally accepted law, it does raise several First Amendment questions regarding embedded journalism. Most modern courts would probably be deferential to virtually any decision by the military on the grounds that journalists voluntarily agree to the restrictions in exchange for access they would not otherwise have and on the basis of the political question doctrine and a general reluctance to question executive decisions in wartime. See Michael J. Glennon, The United States Constitution in its Third Century: Foreign Affairs: Distribution of Constitutional Authority: Foreign Affairs and the Political Question Doctrine, 83 A.J.I.L. 814, 815 (1989) (“In modern American society, these justifications for judicial abstention seem increasingly to be calls for judicial abdication.”) Even if court chose to hear a case in this area, in past censorship cases involving the Persian Gulf War the conflict was militarily resolved so quickly that courts dismissed pending cases on the grounds that they had been rendered moot. See Nation Magazine v. United States Dep’t of Defense, 762 F. Supp. 1558, 1570 (S.D.N.Y. 1991) (dismissing censorship case on grounds of mootness because the war had ended and restrictions had already been removed). The judicial system may, in any event, move too slowly to serve as an adequate check on these restrictions. A rejection of Douglas’ interpretation, however, does not end the debate about whether embedded journalism is harmful to free speech interests. Individual rights may be more broadly protected by constitutional law than the plain text of the constitution suggests. Even if the constitutional “penumbra” does not encompass some protection of the ability of the media to perform its functions as either informer or watchdog, the ideals of free speech extend more broadly than the text of the First Amendment. The restrictions imposed by the military on embedded reporters may violate these principles without being technically unconstitutional. Erwin Knoll, National Security: The Ultimate Threat to the First Amendment, 66 MINN. L. REV. 161 (1981).

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