A divided D.C. Circuit stayed an order blocking the Pentagon's escort requirement for credentialed reporters, finding the government likely to prevail for now against a First Amendment retaliation challenge by The New York Times and reporter Julian Barnes.
What happened
A divided D.C. Circuit on July 16 stayed a district court order blocking the Department of Defense from enforcing an escort requirement for credentialed Pentagon reporters while the government appeals a First Amendment retaliation ruling won by The New York Times and reporter Julian Barnes.
The per curiam majority said the government met the demanding standard for a stay pending appeal. Because both sides had weighty interests, the court said, the emergency stay request turned on the merits of the government's appeal.
On that point, the majority concluded that the department was likely to succeed in arguing that the generally applicable escort rule, on the record before the court, was not a "sufficiently adverse action to give rise to an actionable First Amendment claim" for retaliation. The court emphasized that The Times and Barnes had not argued the rule was not generally applicable, was not implemented evenhandedly, or uniquely burdened them compared with other covered reporters.
The case follows earlier litigation over Pentagon press-credential policies. According to Judge Garcia's dissent, after the department adopted a restrictive credentials policy in October 2025, The Times and Barnes sued and obtained an injunction. The department later announced a new policy requiring credentialed reporters to be escorted at all times on Pentagon grounds, and the district court preliminarily enjoined that escort requirement after finding it was issued to retaliate against the plaintiffs for exercising First Amendment rights.
Judge Garcia would have denied the stay. He wrote that the district court found the escort rule burdened the plaintiffs' journalism by reducing practical access to the Pentagon and making informal, spontaneous interactions with government sources difficult if not impossible. The dissent also rejected the majority's treatment of general applicability, saying a "retaliatory government policy should not be immunized simply because it is broadly and evenly applied."
The appeal will move quickly. The D.C. Circuit set the government's opening brief and appendix for Aug. 10, The Times and Barnes' brief for Sept. 4 and the government's reply for Sept. 18, with oral argument to be scheduled after briefing is complete.