New York Times Company v. DOD

── New York Times Company v. DOD ── Court: Court of Appeals for the D.C. Circuit Date: April 27, 2026 Category: General United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 26-5113 September Term, 2025 1:25-cv-04218-PLF Filed On: April 27, 2026 New York Times Company and Julian E. Barnes, Appellees v. United States Department of Defense, also known as Department of War, et al., Appellants BEFORE: Walker, Childs*, and Garcia, Circuit Judges ORDER Upon consideration of the emergency motion for stay pending appeal, the opposition thereto, and the reply; and the motion to participate as amicus curiae and the lodged amicus brief, it is ORDERED that the motion to participate as amicus be granted. The Clerk is directed to file the lodged amicus brief. It is FURTHER ORDERED that the emergency motion for stay be granted and that the district court’s April 9, 2026, order be stayed to the extent that it entitles journalists to access the Pentagon unescorted. I Last fall, the Pentagon announced a new policy governing Pentagon Facility Alternate Credentials (PFACs), the passes journalists have historically used to access the Pentagon. The new policy restricted this access and implemented rules that would allow * Circuit Judge Childs would deny the emergency motion for stay for the reasons stated in the attached dissenting statement.  United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 26-5113 September Term, 2025 the Pentagon to revoke credentials if the holder was determined to be a “security or safety risk to Department personnel or property.” 2025 PFAC Policy 10, Dkt. No. 29 at 12. A reporter could be deemed a “security or safety risk” “based on the unauthorized access, attempted unauthorized access, or unauthorized disclosure” of Department information. Id. The New York Times (NYT) and one of its journalists, Julian E. Barnes, filed suit to enjoin several provisions of the policy as unconstitutional under the First and Fifth Amendments, and as arbitrary and capricious under the APA. Compl. ¶¶ 60–134, Dkt. No. 1. On cross-motions for summary judgment, the district court held that the rules governing when a PFAC may be denied for “security” reasons were unconstitutionally vague in violation of the Fifth Amendment because they “fail[ed] to provide fair notice of what routine, lawful journalistic practices” would trigger credential revocation. New York Times Co. v. Dep’t of Def. (NYT), 2026 WL 788689, at *11 (D.D.C. Mar. 20, 2026). Turning to the First Amendment, the court noted there was no dispute that “[t]he regular presence of PFAC holders at the Pentagon . . . enhanced the ability of journalists and news organizations . . . to keep Americans informed about the United States military.” Id. at *3 (citing Statement of Undisputed Material Facts (SUMF) ¶ 11, Dkt. No. 10-36); see also Response to SUMF ¶ 11, Dkt. No. 22-2. Moreover, this arrangement had “pos[ed] no security or safety risk to Department property or personnel.” SUMF ¶ 11. By contrast, the district court concluded that the record was “replete with undisputed evidence that the Policy” was specifically, and unreasonably, designed to deprive “disfavored” journalists of access to a nonpublic forum. Id. at *13–14. Accordingly, the district court granted summary judgment to the plaintiffs on their constitutional claims, without addressing the APA claim. Id. at *8. The next business day, the government replaced the invalidated policy with a new one that revised