Justices Won’t Hear Flynt’s 1st Amendment Challenge

Justices last week rejected an appeal by Flynt, a staunch free-speech advocate, on the question whether news media have a constitutional right of access to military troops in combat.

Flynt and Beverly Hills, Calif.-based LFP Inc. filed suit against the Defense Department after officials declined his request to have reporters accompany the first wave of U.S. troops sent to Afghanistan shortly after the Sept. 11, 2001, terrorist attacks.

Flynt asked that Hustler correspondents ‘‘be allowed free access to the theater of U.S. military operations in Afghanistan and other countries where hostilities may be occurring as part of Operation Enduring Freedom.’’

Defense officials then said only a small number of troops were in Afghanistan and that "the highly dangerous and unique nature of their work make it very difficult to embed media."

In the meantime, Hustler reporter David Buchbinder arrived at Bagram Air Force Base by May 2002. Once in Afghanistan, Buchbinder placed himself on a list of reporters awaiting access to ground units.

After receiving word of the denial, Flynt filed suit the next day requesting preliminary and permanent injunctive relief.

Flynt specifically challenged the agency’s Directive 5122.5 for media access on the grounds that enforcement of the agency’s policies violated his historical and constitutional rights of access to the battlefield and that it amounted to a content-based prior restraint that deprived him of his First Amendment rights. Flynt also said the agency’s denial of his request was arbitrary and capricious and made without reference to specific and objective standards.

Government lawyers argued that a First Amendment right of access does not extend to "government property or information that is not open to the public."

After a hearing on Flynt’s motion for a preliminary injunction, the district court denied the motion, stating that it was ‘‘persuaded that in an appropriate case there could be a substantial likelihood of demonstrating that under the First Amendment the press is guaranteed a right to gather and report news’’ about U.S. military operations, subject to reasonable regulations.

That being said, the district court determined that Flynt’s likelihood of success on the merits was ‘‘far from clear,’’ and that because of the quickly evolving factual situation any judicial decisions would ‘‘have to await the development of a fuller record.’’

In February, the U.S. Court of Appeals for the District of Columbia Circuit sided with Pentagon officials, concluding there "is nothing we have found in the Constitution, American history, or our case law to support" the claim that reporters have that constitutional right.

Last week, without comment, U.S. Justices denied his appeal.

The case is Flynt vs. Rumsfeld, 04-33.