![\"ARLINGTON,](\"https:\/\/theintercept.com\/wp-content\/uploads\/2026\/03\/GettyImages-2267368199_40bcc4.jpg?fit=5766%2C3844\")
A judge<\/span> last week struck down<\/a> the Pentagon\u2019s restrictions on journalists seeking \u201cunauthorized\u201d information, siding with the New York Times in its lawsuit against the government. In response, the Pentagon on Monday added some meaningless window dressing<\/a> and essentially reissued the same restrictions. The administration pledged to \u201cimmediately\u201d appeal the decision on the original policy, and on Tuesday, the Times filed a motion<\/a> to compel the administration to comply with the judge\u2019s order.\u00a0<\/p>\n As alarming as the Pentagon\u2019s antics are, the Times\u2019 lawsuit is not the only case about whether reporters have the right to ask questions. It\u2019s not even the only one in the news this week.\u00a0<\/p>\n In 2017, police in Laredo, Texas, arrested<\/a> citizen journalist Patricia Villarreal under an obscure and never previously used law making it a felony to ask government employees for nonpublic information for personal benefit. Her supposed crime was asking a police officer about two local tragedies \u2014 a suicide and a deadly car wreck.<\/p>\n Her arrest was widely ridiculed<\/a>, and a judge quickly threw out<\/a> the charges. When Villarreal sued over her arrest and mistreatment by officers, the legal question wasn\u2019t whether the charges against her were permissible but whether they were so obviously bogus that she could overcome qualified immunity<\/a>, the unjust<\/a> and expansive legal shield that protects government employees from liability for all but the most blatant violations. That issue went<\/a> to the Supreme Court twice, but on Monday, the Court declined<\/a> to review a federal appellate court\u2019s ruling that the officers were shielded from liability.\u00a0<\/p>\n No matter what our severely compromised<\/a> Supreme Court thinks, the local cops who arrested Villarreal were embarrassingly ignorant of the Constitution. But they were also ahead of their time: The Department of Justice is making the same claims that turned the Laredo police into a First Amendment laughingstock \u2014 that reporters simply asking questions to the government is criminal \u2014 to federal district Judge Paul Friedman.\u00a0<\/p>\n Most discussion of the Pentagon\u2019s restrictions has focused on their conditions for reporters to receive press credentials, which the Pentagon says can be revoked if reporters publish \u201cunauthorized\u201d information. That policy is wildly unconstitutional<\/a> on its own, and every mainstream outlet gave up their press passes rather than sign on, leaving war coverage inside the Pentagon to the likes of <\/a>Turning Point USA\u2019s Frontlines and MyPillow CEO Mike Lindell\u2019s LindellTV streaming service.\u00a0<\/p>\n But the Pentagon\u2019s legal filings imply that reporters who don\u2019t follow the rules risk more than their press passes. On March 12, the DOJ filed a brief<\/a> to clarify its lawyers\u2019 earlier comments in a discussion with Friedman at a hearing of \u201cwhether asking a question was a criminal act.\u201d The government argued that although journalists may lawfully ask questions of \u201cauthorized\u201d Pentagon personnel, \u201ca journalist does solicit the commission of a criminal act, and that solicitation is not protected by the First Amendment, when he or she solicits \u2026 non-public information from individuals who are legally obligated not to disclose that information.\u201d<\/p>\n There you have it. What was once a fringe, failed legal theory concocted by some local cops in one Texas border city is now the official position of the federal government\u2019s lawyers, which it felt compelled to put in writing in case anyone wasn\u2019t sure where it stood after the hearing. Both the rogue cops and the DOJ\u2019s lawyers contend that journalists merely asking questions to government officials constitutes unlawful solicitation.\u00a0<\/p>\n \u201cThese Pentagon policies remind us that people in power will stop literally at nothing to control the story.\u201d<\/p>\n<\/blockquote>\n<\/figure>\n As JT Morris, supervising senior attorney at the Foundation for Individual Rights and Expression (which represents Villarreal) told me in an email last week, the First Amendment \u201cunquestionably protects our right to ask questions, whether it\u2019s a citizen asking police about a local crime or the New York Times asking Pentagon officials about matters of national security. Officials can always respond, \u2018no comment.\u2019 But they cannot jail Americans for asking.\u201d<\/p>\n The government\u2019s argument would have turned countless Pulitzer-winning national security reporters into criminals. As Friedman put it<\/a> in his ruling, the \u201crole of a journalist is to solicit information. \u2026 [A] journalist asking questions is not a crime!\u201d (You can tell a judge is miffed when scholarly language fails and they resort to exclamation points.)<\/p>\n The DOJ\u2019s \u201cconcession\u201d in its clarification brief (and later in its revised policy) \u2014 that journalists can direct questions to authorized spokespeople \u2014 makes no difference. That the administration even felt the need to state something so obvious, presumably because they thought it would make them sound more reasonable, signals the extent to which they\u2019ve threatened the First Amendment.\u00a0<\/p>\n Government agencies have long routed journalists\u2019 inquiries to PR flacks and instructed non-public-facing staffers not to answer reporters\u2019 questions. That\u2019s unconstitutional<\/a> in its own right; earlier this month, the Village of Key Biscayne, Florida, became the latest<\/a> government agency to settle<\/a> a lawsuit over its employee gag rule. But until this administration, the government at least placed the burden on its own employees to comply with restrictions on talking to reporters.\u00a0<\/p>\n Now, the government expects journalists to make themselves a party to its censorship directives, and ignore Supreme Court precedent<\/a> that they can print any government information they lawfully obtain, even if it shouldn\u2019t have been released. \u201cA contrary rule \u2026 would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication,\u201d the Court reasoned.\u00a0<\/p>\n Journalist Kathryn Foxhall, who has for years sounded the alarm<\/a> about \u201ccensorship by PIO,\u201d including in collaboration with the Society of Professional Journalists, says the press has failed to meaningfully oppose these policies. \u201cThe media have done little to fight the ever-tightening rules at federal agencies and elsewhere banning reporters from buildings and prohibiting employees from speaking to journalists without the authorities\u2019 oversight. With amazing negligence journalists just assume whatever reporters get is the whole story, even in the face of the many thousands of gagged staff people. Now these Pentagon policies remind us that people in power will stop literally at nothing to control the story,\u201d she told me.<\/p>\n <\/p>\n The Pentagon\u2019s position that newsgathering is a prosecutable offense is not just theoretical. Although the DOJ\u2019s brief didn\u2019t explicitly reference it, just like the officers in Laredo, federal prosecutors have their own archaic and constitutionally dubious law on the books to sane-wash their nonsense arguments \u2014 the Espionage Act<\/a> of 1917. Read literally, that law (Rep. Rashida Tlaib recently introduced a much-needed bill<\/a> to reform it) arguably prohibits reporters and anyone else from obtaining or attempting to obtain national defense information.<\/p>\n But reading it that way to go after journalists would be unconstitutional and politically toxic,\u00a0which is why past administrations have refrained<\/a>. Had the Supreme Court denied the Laredo officers\u2019 qualified immunity in Villarreal\u2019s case, it would have signaled that arguments for expansive interpretations of arcane laws to criminalize routine reporting are a nonstarter.\u00a0<\/p>\n The Court ducked the issue despite being fully aware that the present administration is looking for any excuse to punish reporters that dare to undermine its narratives. They\u2019ve already claimed<\/a> Washington Post reporter Hannah Natanson \u2014 whose home they raided, seizing terabytes of data \u2014 violated the Espionage Act by obtaining leaked information. The Trump administration is barging through the door the Biden administration left wide open, when, despite warnings<\/a> from First Amendment advocates, it extracted a plea deal<\/a> from WikiLeaks founder Julian Assange on Espionage Act charges for obtaining and publishing government records, including about Iraq war crimes.\u00a0<\/p>\n <\/p>\n\n
![\"Reporters](\"https:\/\/theintercept.com\/wp-content\/uploads\/2026\/03\/GettyImages-2240808887.jpg?fit=8256%2C5504\")