The case
The Nation Magazine filed suit against the United States Department of Defense, saying that the press pools violated their First and Fifth Amendment rights, emphasizing that press pools infringe of their news gathering privileges bestowed upon them by the First Amendment. They argued that the press had a First Amendment right to unlimited access in a foreign arena where U.S. forces are involved. They also argued that they are serving the American public, which has a right to know the affairs of the U.S. military.
The Department of Defense argued that the First Amendment does not restrict them from barring journalists from the battlefield and claimed that the primary purpose of the press pools is to develop "a cooperative arrangement designed to balance the media's desire for unilateral coverage with...the responsibility to maintain operational security, protect the safety of the troops, and prevent interference with military operations" (The Nation Magazine v. U.S. Dep't of Defense, 762 F. Supp. 1558 S.D.N.Y. 1991).
The South District Court of New York had to determine three things applied to make a ruling on the case: First, that the plaintiffs (the Nation) had "standing." A plaintiff has standing if he "has suffered an actual or threatened injury which is fairly traceable to the defendant's conduct and which is likely to be redressed by a favorable decision." The Court found that "distinct and palpable" claims and there was "no question" the Nation was denied access to press pools. Thus, the Court concluded the plaintiffs had sufficient standing.
Secondly, the court had to determine whether the judicial branch was qualified under the Constitution's separation of power to rule on this issue, which designate military regulations delegated to the legislative and executive branches. According to a case a few years prior, courts should "hesitate long before entertaining a suit which asks the court to tamper with the . . . necessarily unique structure of the Military Establishment." (Chappell v. Wallace, 462 U.S. 296, 300, 76 L. Ed. 2d 586, 103 S. Ct. 2362 1983). This court found that even though the Department of Justice designed these regulations, it does not render the plaintiff's claim un-justiciable, and that this court was able to rule on the case since it relates mostly to the press and not the actual affairs of the military overseas. Thus, the court was on the road to siding with the press.
Lastly, the Court had to find that the plaintiff's complaint was not moot. At this point, the press pools had been lifted (as of March 4, 1991) so the Court decided they would rule on the constitutionality of the issue when "the controversy is more sharply focused." Generally, a case becomes moot when the issues presented no longer matter or both parties involved lack serious interest in a court decision. Thus, the Court dismissed the complaint, rendering it moot.
The press urged that the First Amendment gives the press a right of access to report on news which affects the United States public. The Court called this issue "charting new constitutional territory" since no other case has decidedly addressed it. Through reasoning, the court stated that the military has rights to restrict access to government controlled institutions like prisons and military bases. On the other hand, the court said, "there is an almost absolute right of access to open places, including such fora as streets and parks." The Court hesitantly stated that the press seems to have "minimal right of access to view and report on major events that affect the functioning of government, including...an overt combat operation." Thus, the government cannot fully restrict the press. However, the court stated that they could not make a ruling, and would wait to decide more deeply on this topic when the issue was more focused.
Prof. Stephen Cooper, in his 2003 article, "Press Controls in Wartime: The Legal, Historical, and Institutional Context," notes, "While no mainstream news organization chose to challenge the press restrictions in court, the list of plaintiffs in Nation Magazine is something of a who’s-who of the American progressive journalism world. Joined in this suit are Nation , Harper’s, In These Times, Pacific News Service, The Guardian, The Progressive, Mother Jones, The L.A. Weekly, The Village Voice, The Texas Observer, Pacifica Radio News, Sydney H. Schanberg, E. L. Doctorow, William Styron, Michael Klare, and Scott Armstrong, plus a separate lawsuit filed by Agence France-Presse. The list of interested parties with amicus curiae briefs included thirteen members of Congress, the American Civil Liberties Union, Fairness and Accuracy in Reporting, and academics Ben Bagdikian, Todd Gitlin, and Herbert I. Schiller, among others. The defendants included Secretary of Defense Richard Cheney, Assistant Secretary of Defense for Public Affairs Peter Williams, Chairman of the Joint Chiefs of Staff General Colin Powell, and President of the United States and Commander-in-Chief of the Armed Forces George Bush."
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