Federal judge won’t stop Pentagon firing of Stars and Stripes journalists

Two journalists for the military news outlet were fired after they emphasized the importance of editorial independence in a CBS News interview. A publisher was also fired.WASHINGTON (CN) — A federal judge on Friday ruled that three Stars and Stripes employees had failed to show the Pentagon engaged in First Amendment retaliation when it terminated them following comments in a preapproved CBS News segment.U.S. District Judge Trevor McFadden denied a preliminary injunction for Editor-in-Chief Erik Slavin, reporter Lara Korte and publisher Max Lederer, who have been on administrative since Aug. 29. In a 24-page opinion, the Donald Trump appointee said the journalists apparently “spoke as part of their official duties and not as private citizens” and thus were unlikely to succeed on First Amendment claims.The trio sued on Aug. 27 after the Pentagon moved to terminate them following Slavin and Korte’s comments in a CBS News Sunday Morning piece. Entitled “The battle over Stars and Stripes," the segment covered Pentagon changes at the outlet and the potential impact on editorial independence.Operating under the Department of Defense, McFadden said Stars and Stripes reporters had limited First Amendment rights to speak on matters of public concern while acting in that role.“Just as a government accountant can be disciplined for her subpar accounting skills, so can a government spokesman for his poor communication skills,” the judge wrote.McFadden pointed to a First Circuit decision in Foley v. Town of Randolph, where a fire chief was terminated after he publicly blamed a house fire on a lack of funding and staffing. Batting down claims of wrongful termination, the appeals court said the chief would “naturally be regarded as the public face of the department" when he spoke in his official capacity at a press conference.In the Stars and Stripes case, the fired journalists had not shown they were speaking as private citizens, McFadden said. He pointed to Slavin, who regularly engages in interviews in his capacity as editor-in-chief and had sought prior approval for the CBS News interview.As for Korte, a reporter and photographer covering the Middle East, she also conducted interviews in her official capacity, McFadden said. He noted she appeared in her office for the interview and was introduced by her title.Lederer’s situation was somewhat different: Although he did not participate in the CBS interview, he refused to deliver notices of termination to Slavin and Korte — a detail that by itself was grounds for termination, McFadden said.Taryn Null, a lawyer with the group Democracy Defenders Fund who has represented the journalists and publisher, argued the journalists had been speaking as private citizens. Korte, she noted, was told she could return to her position if she apologized for her comments to CBS News.“The goal was clearly to stop certain speech and keep employees in line,” Null said. .In January, the Defense Department moved to repeal rules that had previously guaranteed the outlet’s independence, calling them unnecessary and outdated.In March, Deputy Secretary of Defense Stephen Feinberg issued a memorandum imposing restrictions on the newsroom. Among them: a ban on using wire services like the Associated Press and a ban on publishing anything deemed inconsistent with “good order and discipline of the military.”McFadden left the door open for the journalists to succeed further down the line. Noting the reporters were “fired for giving preapproved interviews on their papers’ behalf,” he described them as victims of “a cruel bait-and switch.”“Perhaps discovery will strengthen plaintiffs’ case,” the judge wrote. For now, though, “whatever else such a scheme may violate, it does not clearly offend the First Amendment.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads