ANNALS OF TRUMPI$TAN: Read the Ruling in The Times’s Lawsuit Against the Pentagon.

NY Times wins landmark First Amendment victory against Pentagon, on my birthday.

Read the Ruling in The Times’s Lawsuit Against the Pentagon

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

THE NEW YORK TIMES )

COMPANY, et al., )

Plaintiffs, )

v. ) Civil Action No. 25-04218 (PLF)

DEPARTMENT OF DEFENSE, et al., )

)

)

)

)

)

Defendants. )

____________________________________)

OPINION

A primary purpose of the First Amendment is to enable the press to publish what

it will and the public to read what it chooses, free of any official proscription. Those who drafted

the First Amendment believed that the nation’s security requires a free press and an informed

people and that such security is endangered by governmental suppression of political speech.

That principle has preserved the nation’s security for almost 250 years. It must not be

abandoned now.

As the Supreme Court said fifty years ago in Nebraska Press Association:

We have learned, and continue to learn, from what we view as the

unhappy experiences of other nations where government has been

allowed to meddle in the internal editorial affairs of newspapers.

Regardless of how beneficent-sounding the purposes of controlling

the press might be, we . . . remain intensely skeptical about those

measures that would allow government to insinuate itself into the

editorial rooms of this Nation’s press.

Neb. Press Ass’n v. Stuart, 427 U.S. 539, 560-61 (1976) (alteration in original) (quoting Mia.

Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 259 (1974) (White, J., concurring)).Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 2 of 40

The New York Times (“The Times”) and its reporter Julian E. Barnes have

brought this lawsuit to preserve and defend these principles against overzealous actions by the

Secretary of Defense and the Department he leads. To do so, they have filed a motion for

summary judgment seeking an order vacating, declaring unconstitutional, and permanently

enjoining the enforcement of certain provisions of a policy newly implemented by the United

States Department of Defense (the “Department”). The plaintiffs argue that those provisions

violate their rights under the First and Fifth Amendments and are contrary to the Administrative

Procedure Act (“APA”). Defendants the Department, Pete Hegseth in his official capacity as

Secretary of Defense, and Sean Parnell in his official capacity as Chief Pentagon Spokesman

have filed a cross-motion for summary judgment. The motions have been fully briefed and

argued and are now ripe for decision.1

1 The documents reviewed by the Court in connection with the pending

motions include: Complaint for Declaratory and Injunctive Relief (“Compl.”) [Dkt. No. 1];

Plaintiffs’ Motion for Summary Judgment and Declaratory and Permanent Injunctive Relief

[Dkt. No. 10]; Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment

(“Pls. Mot.”) [Dkt. No. 10-1]; Declaration of Julian E. Barnes (“Barnes Decl.”) [Dkt. No. 10-3];

Declaration of Robert Burns (“Burns Decl.”) [Dkt. No. 10-4]; Declaration of Pete Williams

(“Williams Decl.”) [Dkt. No. 10-6]; Declaration of Theodore Boutrous (“Boutrous Decl.”) [Dkt.

No. 10-8]; Statement of Undisputed Material Facts in Support of Plaintiffs’ Motion for Summary

Judgment (“SUMF”) [Dkt. No. 10-36]; Brief for State of New York as Amicus Curiae in Support

of Plaintiffs’ Motion for Summary Judgment [Dkt. No. 13]; Brief of Amicus Curiae Pentagon

Press Association in Support of Plaintiffs’ Motion for Summary Judgment (“Press Ass’n Br.”)

[Dkt. No. 19]; Brief of Proposed Amici Curiae the Reporters Committee for Freedom of the

Press and 23 Media Organizations in Support of Plaintiffs’ Motion for Summary Judgment

(“Committee Br.”) [Dkt. No. 20]; Brief of Amici Curiae American Civil Liberties Union and

American Civil Liberties Union of the District of Columbia in Support of Plaintiffs [Dkt. No.

21]; Defendants’ Motion for Summary Judgment [Dkt. No. 22]; Defendants’ Cross Motion for

Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment (“Defs. Mot.”)

[Dkt. No. 22-1]; Defendants’ Response to Plaintiffs’ Statement of Undisputed Material Facts

(“Defs. Resp. to SUMF”) [Dkt. No. 22-2]; Combined Memorandum of Law in Opposition to

Defendants’ Motion for Summary Judgment and in Further Support of Plaintiffs’ Motion for

Summary Judgment (“Pls. Reply”) [Dkt. No. 24]; Supplemental Declaration of Theodore

Boutrous (“Supp. Boutrous Decl.”) [Dkt. No. 24-1]; Defendants’ Reply in Support of Their

Motion for Summary Judgment (“Defs. Reply”) [Dkt. No. 27]; Administrative Record,

2Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 3 of 40

For the reasons explained in this Opinion, the Court will grant the plaintiffs’ motion

and deny the defendants’ motion.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual Background2

1. The Parties

This case centers on Pentagon Facilities Alternate Credentials (“PFACs”), press

credentials that members of the media are issued to access the Pentagon. SUMF at 1 (¶ 1). For

decades, journalists from news organizations across the country have covered the Department

from the Pentagon’s grounds, which they have accessed using their PFACs. Id. at 1-2 (¶¶ 2, 5).

The New York Times is one such news organization. Id. at 4 (¶ 22). For more than forty years,

multiple Times reporters with PFACs have worked regularly at the Pentagon. Id. Having a

consistent presence at the Pentagon has enabled and enhanced the ability of the plaintiffs and

other journalists to report on the Department and its leadership during some of the most

consequential moments in American history. Id. at 1-2 (¶ 3). For The Times, having journalists

with access to the Pentagon has enhanced the depth, detail, quality, and accuracy of its coverage

of the Department, the U.S. military, and national security issues. Id. at 5 (¶ 29).

Julian Barnes is a national security reporter with The Times who focuses on the

Pentagon, U.S. intelligence agencies, and international security, among other subjects. SUMF

NYTIMES-DOW-25cv04218-0000001-78 (“AR”) [Dkt. No. 29]; Defendants’ Notice of

Clarification Regarding Statements at Oral Argument (“Notice of Clarification”) [Dkt. No. 32];

Plaintiffs’ Response to Defendants’ “Notice of Clarification” [Dkt. No. 33]; and the Transcript of

Oral Argument (“OA Tr.”).

2 The parties agree that these facts are undisputed. See SUMF; Defs. Resp.

to SUMF.

3Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 4 of 40

at 5 (¶ 24). He has held a PFAC almost continuously since 2004. Id. (¶ 25). Since then, he has

attended hundreds of Pentagon press briefings and had countless discussions with Department

officials in connection with his reporting. Id. (¶ 26). Mr. Barnes’s access to and regular

presence at the Pentagon allowed him to join press briefings scheduled on short notice, ask

follow-up questions of Department spokespeople during and after press conferences, and ask

questions of the public affairs representatives of every branch of the U.S. military. Id. (¶ 27).

He and six other reporters with The Times held PFACs for most of 2025. Id. (¶ 23).

By law, the Pentagon is under the “jurisdiction, custody, and control” of the

“Secretary of Defense,” who is required to “protect [its] buildings, grounds, and property” and is

empowered to prescribe rules and regulations “to ensure [its] safe, efficient, and secure

operation.” 10 U.S.C. § 2674(a)-(c). Pete Hegseth has served as Secretary of Defense since his

confirmation by the Senate on January 24, 2025. SUMF at 6 (¶ 33). Before and during

Secretary Hegseth’s confirmation process, news outlets, including The Times, reported

extensively on his background, including allegations of past sexual assault, excessive drinking,

and marital infidelity, as well as questions about his lack of relevant experience. Id. (¶ 34).

Throughout Secretary Hegseth’s tenure, the Secretary and other Department officials have

complained openly about reporting that they perceive as unfavorable to them and the

Department. Id. (¶ 35).

2. The History of News Organizations at the Pentagon

There has long been a process by which the Department issues PFACs to

journalists to access the Pentagon. SUMF at 2 (¶ 5). For decades, that process required PFAC

applicants to submit a letter confirming their employment and assignment with a news

organization and undergo a standard background check. Id. Beginning in the early 2000s,

4Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 5 of 40

reporters who received PFACs were also asked to sign a one-page form setting forth certain

“basic, noncontroversial” requirements related to PFACs. Id. (¶ 8). Those requirements

included that the credential should be “visible and worn above the waist at all times while in the

Pentagon” and that “[l]ost PFACs should immediately be reported to the Public Affairs

Operations.” Id. Reporters with PFACs were also restricted from accessing certain secure areas

within the Pentagon, and reporters respected those boundaries. Id. at 3 (¶ 10). In addition, the

Department has long provided dedicated physical workspace for news organizations within the

Pentagon. Id. at 2 (¶ 7).

The regular presence of PFAC holders at the Pentagon has enhanced the ability of

journalists and news organizations to keep Americans informed about the U.S. military while

posing no security or safety risk to Department property or personnel. SUMF at 3 (¶ 11). From

the Pentagon, reporters historically have been able to cover official press briefings, including

those called on short notice (or without notice), and to ask questions of Pentagon officials at (and

before and after) those briefings. Id. (¶ 12). Reporters at the Pentagon also have engaged in

additional semi-formal and informal conversations with senior Department officials and their

aides, as well as public affairs staff. Id. (¶ 13). These in-person interactions can be crucial to

obtaining the context and detail needed to report accurately and effectively about defense policy

and military operations. Id. In addition, these interactions enable reporters at the Pentagon to

establish professional relationships and foster trust with Department officials. Id. (¶ 15).

Over the past several decades, there have been times when PFAC holders have

published news stories critical of the Department or reported information that Department

officials believed had come out too soon or would have preferred had not been made public at

all. SUMF at 4 (¶ 19). The publication of such stories has led to scrutiny of the Department and

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its officials by lawmakers and the public, and it has sometimes spurred beneficial reform. Id.

Historically, though, even when Department leaders disliked a journalist’s reporting, they did not

consider suspending, revoking, or not renewing the journalist’s press credentials in response to

that reporting. Id. (¶ 20). Julian Barnes, Pete Williams, and Robert Burns—reporters who have

spent decades covering the Pentagon—as well as former Pentagon officials, are not aware of the

Department ever suspending, revoking, or not renewing a journalist’s credentials due to concern

over the safety or security of Department personnel or property or based on the content of their

reporting. Id. (¶ 21); see Barnes Decl. ¶ 7; Williams Decl. ¶ 10; Burns Decl. ¶¶ 16-17.

3

3. The Department Announces a New PFAC Policy

In May 2025, the Department issued a memorandum entitled “Updated Physical

Control Measures for Press/Media Access Within the Pentagon,” which imposed new restrictions

on journalists’ physical access to specific areas within the Pentagon. SUMF at 6-7 (¶ 38); see

3 For example, during the heated controversy over the publication of the Pentagon

Papers, the government fought The Times and The Washington Post in court rather than

retaliating by attempting to exclude journalists from those organizations from the Pentagon.

Notwithstanding the Department’s strong desire to prevent the Pentagon Papers’ release, the

Department did not threaten to revoke the reporters’ credentials, and press briefings continued as

normal. See Press Ass’n Br. at 6. Likewise, the Department did not attempt to exclude

journalists from the Pentagon following the publication of stories describing the toxicity of

Agent Orange used during the Vietnam War, or the reporting on the “Fat Leonard” corruption

scandal involving serious threats to national security, or a host of other revelations from the

media. See Committee Br. at 13-15. And as counsel for the Pentagon Press Association as

amicus curiae recounted at oral argument:

When General Westmoreland was upset that CBS was reporting

misinformation about the Vietnam War, he sued. But no reporter

lost their credentials. When 60 Minutes published photos of Abu

Ghraib, they did a public service. The Pentagon was upset, it was a

disclosure of unauthorized information. But no one reached out to

yank credentials.

OA Tr. at 31.

6Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 7 of 40

AR at 46-47. Specifically, the May memorandum prohibited journalists from being in the areas

around the Secretary’s office and stated that access to other sections of the building would

require an official escort. SUMF at 7 (¶ 40). According to the memorandum, these “updated

security measures” were “needed to reduce the opportunities for in-person inadvertent and

unauthorized disclosures.” Id. (¶ 39).

Four months later, in September 2025, Mr. Parnell issued a memorandum entitled

“Implementation of New Media In-brief,” which purported to implement the Department’s

“Updated Physical Control Measures” from May. SUMF at 7 (¶ 42); see AR at 22-23. The

September memorandum stated that “[a]ll members of the press issued a [PFAC] will be required

to read and sign a new in-brief form outlining information security requirements, the new

physical control measures, and [Department] expectations of their compliance with safety and

security requirements.” SUMF at 7 (¶ 43). The Department did not identify any breach of

physical security or other incident necessitating new restrictions or requirements, and journalists,

including Mr. Barnes, are not aware of any such incident. Id. at 7-8 (¶ 44).

Attached to the September memorandum was a “Reservation In-Brief” (the

“September In-Brief”), which announced new rules relating to PFACs. SUMF at 8 (¶ 45). The

September In-Brief stated that “PFACs may be denied, revoked, or not renewed if a person is

reasonably determined to pose a security or safety risk to [Department] personnel or property.”

Id. (¶ 46). The September In-Brief further provided that such a determination may be “based on

the unauthorized access, attempted unauthorized access, or unauthorized disclosure of”

Department information and on grounds that “includ[ed], but [were] not limited to,” “attempts to

improperly obtain” Department information or “being found in physical possession of” such

information “without reporting it.” Id. Appendix A to the September In-Brief provided

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additional grounds upon which the Department could “deny, revoke, or refuse to renew a

PFAC,” which “include[d], but [we]re not limited to,” convictions for specific offenses. AR

at 34-35. Finally, the September In-Brief included a series of “Acknowledgements” that

journalists would be required to sign to obtain or maintain a PFAC. SUMF at 8 (¶ 47). Those

Acknowledgements included statements affirming that the journalist had received the In-Brief

and “underst[ood]” its requirements. AR at 32-33.

4. The Department and Members of the Press Engage on the New PFAC Policy

On September 22, 2025, the Reporters Committee for Freedom of the Press (the

“Committee”) sent a letter to Mr. Parnell “seeking clarity about the meaning of the [September

In-Brief] and its implications for” journalists. AR at 44-45. The Committee’s letter posed three

broad questions and concerns. See id. First, the Committee asked whether the September In-

Brief purported to require credentialed reporters to seek permission to disclose Department

information. Id. at 44. Second, the Committee asked whether, by signing the

Acknowledgements,

“the PFAC holder is acknowledging that he or she will not take those

actions, or that the PFAC holder is merely acknowledging that this is the Pentagon’s policy.” Id.

at 45. Third, the Committee noted that, in its view, the September In-Brief “does not make clear

whether a PFAC holder’s disclosure of classified national security information or controlled

unclassified information ‘shall’ or ‘may’

– in the Department’s discretion – result in the denial or

revocation of a PFAC.” Id.

In a response letter dated September 24, 2025, Mr. Parnell wrote to “clarify” the

application of the September In-Brief. SUMF at 9 (¶ 49); see AR at 41-43. Regarding the

Committee’s first concern, Mr. Parnell stated that the September In-Brief’s requirement that

“information must be approved for public release” was directed at Pentagon officials and did

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“not impose restrictions on journalistic activities, such as investigating, reporting, or publishing

stories.” SUMF at 9 (¶ 49). The “focus” of the new policy, Mr. Parnell explained, was “on

preventing active solicitation that encourages [Department] personnel to violate [the

Department’s] disclosure rules, as such conduct is not always protected by the First

Amendment.” Id. (¶ 50). As for the Committee’s second concern, Mr. Parnell stated that the

“Acknowledgements” are intended as “acknowledgments of [Department] policies and potential

grounds for discretionary action, not as commitments by reporters to refrain from newsgathering

or disclosure.” AR at 42. He further stated that “[r]eceipt of unsolicited information and

subsequent publication” “would not normally, on its own, trigger revocation” of a PFAC but that

in “rare, extreme cases,” such receipt “could factor into an assessment” of whether the reporter

“poses a security risk.” Id. Regarding the Committee’s third concern, Mr. Parnell stated that the

September In-Brief “does not mandate (‘shall’) that a PFAC holder’s disclosure of” Department

information “result in denial or revocation; rather it ‘may’ do so in the Department’s discretion.”

Id.

Following additional discussions between Department officials and various media

outlets, see AR at 48-74, The Times and other media organizations informed the Pentagon that

provisions of the new PFAC policy were incompatible with the First Amendment and the

responsibilities of members of the press. SUMF at 9 (¶ 53). The reporters therefore advised the

Pentagon that they could not sign the Acknowledgement. Id.

5. The Department Issues a Final PFAC Policy

On October 6, 2025, the Department issued a new PFAC policy that included

final versions of the In-Brief and Acknowledgment (the “Policy”). SUMF at 10 (¶ 54); see AR

at 1-21. The Policy provides that a PFAC “may be denied, revoked, or not renewed if a person is

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reasonably determined to pose a security or safety risk to [Department] personnel or property”

and that “[s]uch an initial determination may result in an immediate suspension of [a journalist’s]

Pentagon access while the procedures preceding a final determination are pending.” SUMF at 10

(¶ 55). The Policy states that “[s]uch determination may be based on factors including, but not

limited to, the unauthorized access, attempted unauthorized access, or unauthorized disclosure

of” classified national security information (“CNSI”) or controlled unclassified information

(“CUI”) “based on a reasonable assessment informed by the unique facts and circumstances of

each case” and that “[a]ll determinations under th[e] Policy are undertaken on a case-by-case

basis reviewing the totality of the circumstances.” Id. (¶¶ 56-57). The Policy further provides

that a journalist’s receipt, publication, or “solicitation” of CUI, which “may include, but is not

limited to, information protected by the Privacy Act, information that is law enforcement-

sensitive, and certain operational security information,” may result in the immediate suspension

or revocation of a PFAC. Id. (¶ 58). The examples of “solicitation” provided in the Policy

include direct communications with specific [Department]

personnel or general appeals, such as public advertisements or calls

for tips encouraging [Department] employees to share non-public

[Department] information. For example, an advertisement or social

media post by an individual journalist or media outlet that directly

targets [Department] personnel to disclose non-public information

without proper authorization would constitute a solicitation that

could lead to revocation. Additionally, publication that recklessly

endangers American lives could factor into an assessment of

whether continued unescorted access to the Pentagon poses a

security risk.

Id. at 11 (¶ 60).

Appendix A, Part A of the Policy provides that “[p]ersons presumed to present” a

“security or safety risk to [Department] personnel or property” will “include, but are not limited

to, those who have been convicted of any offense involving,” among other things, national

defense, theft, trespassing, fraud, deceit, and “[u]nprofessional conduct that might serve to

10Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 11 of 40

disrupt Pentagon operations.” SUMF at 11 (¶ 61). The Appendix also states that “actions other

than convictions may be deemed to pose a security or safety risk, such as discussed in the [In-

Brief].” Id. (¶ 62). In addition, Appendix A, Part B sets forth “[p]rocedures for [d]enial,

[r]evocation, or [n]on-[r]enewal” of a PFAC. Id. (¶ 63). Those procedures allow for an appeal

following the “immediate suspension” of a reporter’s PFAC and authorize the Department to

“conduct [an] inquiry as deemed appropriate” after receiving a reporter’s “written or oral

response to the proposed denial, revocation, or non-renewal.” Id. at 12 (¶¶ 64-65). Finally, the

Policy includes the following “Acknowledgement”:

I have received, read, and understand the “Pentagon Reservation In-

brief for Media Members,” with Appendices A-E, including

Appendix A, which addresses the standard and procedures for

denying, revoking, or not renewing a PFAC. The in-brief describes

[Department] policies and procedures. My signature represents my

acknowledgement and understanding of such [Department] policies

and procedures, even if I do not necessarily agree with such policies

and procedures. Signing this acknowledgment does not waive any

rights I may have under law.

Id. (¶ 67).

After the Policy was issued, PFAC holders were informed that their PFACs would

be revoked if they did not sign the Acknowledgement by October 15, 2025. SUMF at 12 (¶ 68).

Seven journalists with The Times, including Mr. Barnes, as well as most other journalists who

held PFACs at the time, refused to sign the Acknowledgement. Id. (¶ 69). Mr. Barnes and his

colleagues at The Times turned in their PFACs on or around October 15, 2025. Id. (¶ 70).

Mr. Barnes has not been back to the Pentagon since that date. Id. at 13 (¶ 71).

6. The New “Pentagon Press Corps”

On October 22, 2025, in a post on his official X account, Mr. Parnell

“announce[d] the next generation of the Pentagon press corps.” SUMF at 13 (¶ 73). In that post,

11Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 12 of 40

Mr. Parnell wrote that the “[n]ew media outlets” that “signed the . . . media access policy”

“circumvent the lies of the mainstream media and get real news to the American people.” Id.

(¶ 74). Mr. Parnell also wrote that “[t]heir reach and impact collectively are far more effective

and balanced than the self-righteous media who chose to self-deport from the Pentagon,” and he

referred to those former PFAC holders as “activists who masquerade as journalists.” Id. The

new PFAC holders that the Department selected “were individuals and outlets who had

expressed ideological agreement with and support for the Trump administration in the past.” Id.

(¶ 75). Those new holders include reporters from the National Pulse, an “industry mag/site for

MAGA world”; Laura Loomer, an “influential pro-Trump activist”; Matt Gaetz, President

Trump’s one-time choice for Attorney General; James O’Keefe, the founder of the conservative

group Project Veritas, who had pleaded guilty to federal charges for entering federal property

under false pretenses and was under federal investigation for an unrelated offense; Mike Lindell,

the CEO of MyPillow; Libby Emmons, the editor-in-chief of Human Events and the Post

Millennial; and Tim Pool, a conservative political commentator and podcaster. Id. at 13-15

(¶¶ 76-82, 90).

Following the approval of his PFAC application, Mike Lindell promised to make

the Trump administration “proud” of his coverage of the Pentagon. SUMF at 14 (¶ 80).

Libby Emmons, who received an “unsolicited invitation to apply for credentials,” stated that

there should be a place for reporting on what they are doing [at the Pentagon] without always

trying to expose the dark underbelly.” Id. (¶ 81). Tim Pool stated that his outlet, which was

granted a PFAC, was “not an investigative news organization” and did “not intend to maintain a

significant presence in the Pentagon.” Id. (¶ 82).

12Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 13 of 40

In her post on X announcing that her platform LOOMERED “is now a

credentialed outlet at the Pentagon,” Laura Loomer stated: “I have developed a Rolodex of

sources and if you have any tips, feel free to contact the Loomered Tip Line: the most influential

Tip Line in all of DC.” SUMF at 15 (¶ 87). In response to a question regarding whether

Ms. Loomer’s “request for tips violates” the Policy, the Department issued a statement on

November 4, 2025, attributed to Pentagon Press Secretary Kingsley Wilson, asserting that

Loomer’s call for tips is “a general tip line, which is constitutionally permissible.” Id. (¶ 88). By

contrast, the Department stated that a tip line frequently published alongside Pentagon-related

stories by The Washington Post violated the Policy because it “targets military personnel and

[Department] employees.” Id.

In December 2025, at the first in-person press event on Pentagon grounds since

the Policy took effect, Press Secretary Wilson described the new PFAC recipients as people who

“actually reach Americans, ask real questions, and don’t pursue a biased agenda.” SUMF at 14

(¶ 83). Ms. Wilson called journalists and news organizations who had previously held PFACs

“propagandists” who “stopped telling the truth” and who “continue[] to lie.” Id. at 14-15 (¶ 84).

And in response to a question from James O’Keefe regarding his surreptitiously recording a

Pentagon official’s criticism of President Trump, Ms. Wilson stated: “That’s why the work you

all do is so important . . . . [W]e want to make sure that we have the absolute best people

working in it to protect Americans . . . [and] that they’re on board and willing to serve our

commander in chief.” Id. at 16 (¶ 91).

7. The Harm to the Plaintiffs

As of November 2025, The Times had more than twelve million subscribers

across its print and digital products, including news. SUMF at 16 (¶ 92). The Times’ website is

13Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 14 of 40

the most visited news website in the United States. Id. (¶ 93). The Times has multiple reporters

dedicated to covering national security, the Department of Defense, and the U.S. military. Id.

(¶ 94). Yet no reporter from The Times has held a PFAC since October 15, 2025. Id. (¶ 95).

The loss of PFACs has created an unprecedented and significant impediment to

The Times’ ability to cover the Department and its leadership, national security, and the U.S.

military. SUMF at 16 (¶ 96). For example, the Pentagon has held press events, including a press

conference in the Pentagon Press Briefing Room in which Pentagon staff discussed military

strikes on Venezuelan boats and Venezuela itself, that Times reporters could not attend because

they no longer have PFACs. Id. (¶ 97); Barnes Decl. ¶¶ 19-20. While The Times and

Mr. Barnes have continued to cover the Pentagon since October 15, 2025, doing so has been

more difficult and burdensome. SUMF at 17 (¶ 103).

B. Procedural History

The plaintiffs filed this lawsuit on December 4, 2025. See Compl. The plaintiffs

advance seven counts: two counts under the Fifth Amendment, three counts under the First

Amendment, one count under both the First and Fifth Amendments, and one count under the

APA. See id. ¶¶ 60-134. They seek an order that (i) declares that certain provisions of the

Policy are unlawful and unconstitutional; (ii) vacates and preliminarily and permanently enjoins

the defendants from implementing or seeking to enforce those provisions; and (iii) directs the

defendants to reinstate the PFACs formerly held by Mr. Barnes and The Times’ other reporters.

See id. at 39.

On January 5, 2026, the plaintiffs moved for summary judgment on all counts.

See Pls. Mot. The defendants filed an opposition to the plaintiffs’ motion and a cross-motion for

summary judgment on January 30. See Defs. Mot. The plaintiffs filed an opposition and reply

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on February 18, see Pls. Reply, and the defendants filed a reply on February 27, see Defs. Reply.

The Court heard oral arguments on the parties’ cross-motions for summary judgment on

March 6, 2026.

II. LEGAL STANDARDS

A party is entitled to summary judgment only “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(a). In evaluating a motion for summary judgment, “[t]he evidence is to

be viewed in the light most favorable to the nonmoving party and the court must draw all

reasonable inferences” in that party’s favor. Talavera v. Shah, 638 F.3d 303, 308 (D.C.

Cir. 2011). “When parties file cross-motions for summary judgment, each motion is viewed

separately, in the light most favorable to the [nonmoving] party, with the court determining, ‘for

each side, whether a judgment may be entered in accordance with the Rule 56 standard.’”

Howard Town Ctr. Dev., LLC v. Howard Univ., 267 F. Supp. 3d 229, 236 (D.D.C. 2017)

(quoting Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016)). The

defendants dispute only four of the statements in the plaintiffs’ statement of undisputed material

facts, and the facts that the defendants do contest are not material. The Court therefore can

resolve the case at this stage as a matter of law.

The plaintiffs acknowledge that they are challenging provisions of the Policy as

unconstitutional “on their face.” Pls. Reply at 1. “To succeed in a typical facial attack,” a

plaintiff “must establish ‘that no set of circumstances exists under which [the statute] would be

valid or that the statute lacks any plainly legitimate sweep.’” Edwards v. District of Columbia,

755 F.3d 996, 1001 (D.C. Cir. 2014) (quoting United States v. Stevens, 559 U.S. 460, 472

(2010)). That requirement is relaxed in the First Amendment context, and a plaintiff must show

15Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 16 of 40

that “a substantial number of [the statute’s] applications are unconstitutional, judged in relation

to [its] plainly legitimate sweep.” Id. (quoting Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 n.6 (2008)).

III. DISCUSSION

The plaintiffs argue that the Policy is unconstitutional under both the First and

Fifth Amendments and that it is contrary to the APA. See Pls. Mot. The Court agrees with the

plaintiffs on their constitutional arguments and thus does not address the plaintiffs’ argument

under the APA.

4

A. The Policy Violates the Fifth Amendment

To press their due process claims under the Fifth Amendment, the plaintiffs must

establish that they have “been deprived of a protected interest in ‘liberty’ or ‘property.’” NB ex

rel. Peacock v. District of Columbia, 794 F.3d 31, 41 (D.C. Cir. 2015) (quoting Gen. Elec. Co. v.

Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010)). Relying on Sherrill v. Knight (“Sherrill”), 569

F.2d 124 (D.C. Cir. 1977), the plaintiffs contend that “‘the interest of a bona fide . . .

correspondent’ in obtaining or retaining a press credential is not only ‘protected by the first

amendment,’ but also ‘undoubtedly qualifies as [a] liberty [interest] which may not be denied

without due process of law under the fifth amendment.’” Pls. Mot. at 23 (second and third

alterations in original) (quoting Sherrill, 569 F.2d at 130-31). Although the media credential at

issue in Sherrill was a White House press pass rather than a Defense Department PFAC, the

Court discerns no reason why that factual difference would be material, and the defendants

4 The Court notes, however, that the plaintiffs’ argument that the Policy is arbitrary

and capricious under the APA largely is coextensive with their constitutional arguments.

16Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 17 of 40

identify none. See Defs. Mot. at 13-24. The plaintiffs have established that they have a

protected liberty interest in their PFACs, which forms the basis for their due process challenge.

The plaintiffs’ primary due process contention is that the Policy is so vague as to

render it constitutionally deficient. See Pls. Mot. at 24-28. A law or regulation “is

unconstitutionally vague if it ‘fails to provide a person of ordinary intelligence fair notice of

what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory

enforcement.’” Woodhull Freedom Found. v. United States, 72 F.4th 1286, 1303 (D.C.

Cir. 2023) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). Put differently,

“[r]egulated parties should know what is required of them so they may act accordingly[,] [and]

precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or

discriminatory way.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). These

concerns are particularly acute in the First Amendment context because “[u]ncertain meanings

inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the

forbidden areas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)

(citation modified). So when a law implicates First Amendment rights, “a more stringent

vagueness test” is applied. Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,

499 (1982); see Karem v. Trump (“Karem”), 960 F.3d 656, 665 (D.C. Cir. 2020).

The plaintiffs maintain that the Policy violates due process vagueness principles

because it “fails to give fair notice of the conduct it prohibits—a ‘fundamental principle in our

legal system.’” Pls. Mot. at 25 (quoting FCC v. Fox Television Stations, Inc., 567 U.S. at 253).

They argue that the Policy “is unconstitutionally vague . . . because it does not tell journalists and

news organizations what routine reporting and newsgathering . . . will (or will not) cause them to

lose their PFACs.” Pls. Reply at 3. In making this argument, the plaintiffs rely heavily on the

17Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 18 of 40

D.C. Circuit’s decisions in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), and Karem v.

Trump, 960 F.3d 656 (D.C. Cir. 2020).

In Sherrill, the plaintiff, Robert Sherrill, was a Washington correspondent for

The Nation. Sherrill, 569 F.2d at 126. He applied for and was denied a White House press pass

for “reasons of security.” Id. at 126-27. In weighing the plaintiff’s challenge to that denial, the

D.C. Circuit explained that the government’s decision to establish press facilities for

correspondents who need to report from the White House implicates the First Amendment rights

of both journalists and the general public and that access to those spaces cannot “be denied

arbitrarily or for less than compelling reasons.” Id. at 129. Given the interests at stake, the court

elaborated that the government must meaningfully “inform the public [and] other potential

applicants of the basis for exclusion of journalists from” those spaces. Id. at 130. But the mere

invocation of “reasons of security,

” the court explained, does not suffice to inform the interested

parties because that phrase “is unnecessarily vague and subject to ambiguous interpretation.” Id.

With all this in mind, the court held that the White House’s “failure to articulate and publish an

explicit and meaningful standard governing denial of White House press passes for security

reasons” violated the Due Process Clause. Id. at 131.

In Karem, the White House suspended a journalist’s press pass for one month

based on his conduct at a Rose Garden event. Karem, 960 F.3d at 662-63. Considering the

journalist’s constitutional challenge to that suspension, the court of appeals held that a “duly

issued [press] pass may not be suspended without due process.” Id. at 665. The court elaborated

that because the suspension of a press pass “implicates important first amendment rights,” it

must be evaluated “under a particularly stringent vagueness and fair-notice test.” Id. (citation

modified). Concluding that the White House had not fairly informed the journalist of the

18Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 19 of 40

behavior that would subject him to punishment and the severity of the penalty that might be

imposed, the D.C. Circuit held that the suspension of the journalist’s press pass likely

contravened due process protections. Id.

These two decisions heavily inform this Court’s analysis. Indeed, the parallels

between this case and those precedents are hard to miss. In this case, the Policy states that “[a]

PFAC may be denied, revoked, or not renewed if a person is reasonably determined to pose a

security or safety risk to [Department] personnel or property.” AR at 12. As the plaintiffs point

out, this standard “echo[es] the approach struck down in Sherrill.” Pls. Mot. at 25. In Sherrill,

the D.C. Circuit explicitly held that the government may not point to unspecified “reasons of

security” to deny an application for a press pass because such an explanation is “unnecessarily

vague and subject to ambiguous interpretation.” Sherrill, 569 F.2d at 130; see also N.Y. Times

Co. v. United States, 403 U.S. 713, 719 (1971) (Black, J., concurring) (explaining that “the word

‘security’ is a broad, vague generality”). Yet that is precisely what the Department has done in

the Policy.

The defendants argue that the D.C. Circuit’s reasoning in Sherrill actually

supports their position because the court there “rejected the contention that the White House was

required to articulate ‘detailed criteria upon which the granting or denial of White House press

passes is to be based.’” Defs. Mot. at 18 (quoting Sherrill, 569 F.2d at 128). To be sure, the

court in Sherrill agreed with the White House that its reason for regulating press access—the

“protection of the President”

—

“does not lend itself to detailed articulation of narrow and specific

standards.” Sherrill, 569 F.2d at 130. But the court did so while noting that a standard for the

issuance of White House press credentials based on “whether the applicant presents a potential

source of physical danger to the President and/or his immediate family so serious as to justify his

19Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 20 of 40

exclusion” would be “sufficiently circumspect” to provide journalists with constitutionally

adequate notice. Id. That is, unlike the “reasons of security” standard, the “physical danger to

the President” standard would be “explicit and meaningful.” Id. at 130-31. The Court agrees

with the plaintiffs that the standard outlined in the Policy allowing Department officials to

revoke or deny the PFAC of any journalist deemed a “security or safety risk” for virtually any

reason is a “far cry from the ‘circumspect’ hypothetical standard discussed in Sherrill.

” Pls.

Reply at 4. While the Department need not “predict every conceivable form that a potential

security risk might take,” Defs. Mot. at 18, the reasoning in Sherrill dictates that the Department

is required to articulate a standard that is more specific and meaningful than mere considerations

of “security.” See Sherrill, 569 F.2d at 130.

Nonetheless, the defendants assert that the Policy is not impermissibly vague

because it “extensively details the criteria that will be considered” in determining whether a

journalist is a “security or safety risk.” Defs. Reply at 3. According to the defendants, those

criteria include “soliciting the disclosure of CNSI or CUI or encouraging Department personnel

to violate” disclosure laws. Defs. Mot. at 15. In addition, the defendants note that the Policy

provides “examples of what . . . solicitation might look like: general appeals, direct

communications, and advertisements that directly target Department personnel to disclose

information without authorization.” Id. In the defendants’ view, that “is more than enough” to

put a person “of ordinary intelligence” on notice. Id.

The problem for the defendants—as the plaintiffs point out—is that these criteria

are themselves open to ambiguous interpretation. See Pls. Mot. at 26; Pls. Reply at 6. The

considerations that may or may not lead to a reporter being deemed “a security or safety risk”

include obtaining or attempting to obtain any information that the Department has not approved

20Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 21 of 40

for release, regardless of whether that information is classified. See AR at 12-13. But to state

the obvious, obtaining and attempting to obtain information is what journalists do. A primary

way in which journalists obtain information is by asking questions. Indeed, “[t]he freedom to

ask questions of public officials is fundamental to the work of journalism.” Committee Br. at 7.

Under the Policy’s terms, then, essential journalistic practices that the plaintiffs and others

engage in every day—such as asking questions of Department employees—could trigger a

determination by the Department that a journalist poses a security or safety risk.

Perhaps contending with that reality, the defendants argue in their reply brief that

the Policy’s limitations on journalists accessing or attempting to access non-public information

are sufficiently clear because they do not in fact “create any new restriction on journalists’

conduct.

” Defs. Reply at 4. Instead, the defendants assert that the Policy does no more than

incorporate “existing federal criminal law” prohibiting the disclosure of certain Department

information. Id. (emphasis omitted). The Policy’s constraints on “solicitation,” in the

defendants’ telling, simply proscribe criminal solicitation—that is, “the solicitation of conduct

that is independently unlawful for Department personnel.” Id. at 5 (emphasis omitted). And

that—the defendants say—“is precisely the category of speech that the Supreme Court held is

unprotected” in United States v. Hansen (“Hansen”), 599 U.S. 762, 783 (2023). Defs. Reply

at 5.

This argument, simply put, is just plain wrong.

“Criminal solicitation is the

intentional encouragement of an unlawful act.

” Hansen, 599 U.S. at 771. But to “solicit” in the

everyday sense means “to approach (someone) with a request or plea.” Solicit, Merriam-

Webster, https://perma.cc/73MD-6DF8. For example, one can solicit donations or solicit

volunteers. A lawyer can solicit clients. The role of a journalist is to solicit information. All of

21Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 22 of 40

these acts fall within the everyday meaning of the word “solicitation.” A charity requesting

donations, a community organizer calling on volunteers, or a journalist asking questions is not a

crime!

Even assuming that in some narrow circumstances a journalist’s conduct could

amount to criminal solicitation as defined in Hansen, the Policy does not clearly distinguish

between any such impermissible solicitation and plainly lawful journalistic practices. For

example, the Policy’s illustrations of impermissible “solicitation” include obtaining not just

classified information, but any “non-public information” released “without proper

authorization.” AR at 12-13. But a journalist would have no way of knowing what information

has been authorized for release and what has not. Under the Policy, if the journalist happens to

ask a question that results in the disclosure of unauthorized information by a Department

employee, that question could lead to the journalist being deemed a “security or safety risk.

”

Similarly, the Policy encompasses something called “controlled unclassified information,” or

CUI, which—by the Policy’s definition—“may include, but is not limited to, information

protected by the Privacy Act, information that is law enforcement-sensitive, and certain

operational security information.” AR at 6. The plaintiffs point out that the Department

recognizes 113 categories of CUI. See Pls. Reply at 6 & n.1. A journalist cannot possibly know

every piece of information that falls into one of those 113 categories. But again, if a journalist

asks a question that leads to the disclosure of CUI by a Department employee, the journalist’s

PFAC could be revoked under the terms of the Policy.

As a last resort, counsel for the defendants made the following “representation” at

oral argument: “The Department will only consider solicitation where the disclosure by

Department of [Defense] personnel would be a criminal act, and only where the criminal act

22Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 23 of 40

violates one of the statutes explicitly listed in the policy.” OA Tr. at 47-48. Immediately after

making that representation, though, counsel noted that it is not the defendants’ position that if a

journalist asks a question that seeks information, the providing of which would violate a criminal

statute listed in the Policy, the journalist necessarily has engaged in criminal solicitation. See id.

at 48. This ostensible limiting interpretation by the government does not clarify or limit the

Policy’s criteria because that interpretation itself encompasses within its prohibitions more than

criminal solicitation. And in any event, counsel’s representation is flatly inconsistent with the

explicit language of the Policy. See AR at 12-13. If anything, the fact that the defendants felt

compelled to make such a representation underscores just how impenetrable the Policy is. If the

defendants themselves equivocate on the Policy’s meaning, how can journalists possibly know

what they can and cannot do under its terms?

In short, the Policy fails to provide fair notice of what routine, lawful journalistic

practices will result in the denial, suspension, or revocation of a PFAC. In the plaintiffs’ words,

“[i]n practice, virtually any newsgathering could be characterized as prohibited ‘solicitation,

’” if

the Department so chooses. Pls. Reply at 6. Given this uncertainty, one could easily predict that

journalists would opt not to ask any questions rather than risk losing their PFACs. Indeed,

Mr. Barnes averred that “[i]t is not clear to [him], based on the language of the new PFAC

policy, what steps [he] would need to take to ensure that [his] PFAC was not subject to

revocation, suspension, or non-renewal—other than to stop reporting on the Pentagon and the

United States military.” Barnes Decl. ¶ 15. The vagueness doctrine is intended to protect

against precisely that chilling effect. See Grayned v. City of Rockford, 408 U.S. at 109.

The plaintiffs also argue that “the Policy is unconstitutionally vague for the

additional reason that it ‘is so standardless that it authorizes or encourages seriously

23Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 24 of 40

discriminatory enforcement.’” Pls. Mot. at 27 (quoting United States v. Williams, 553 U.S.

at 304). The plaintiffs assert specifically that the Policy does not provide Department officials

with clear standards to guide the determination of whether a journalist’s PFAC should or should

not be suspended, revoked, or not renewed, “thereby empowering Department officials to do

whatever they want, depending on their own personal predilections.” Id. at 27-28. As the D.C.

Circuit has recognized, this argument is closely related to the argument that the Policy is

unreasonable because it grants Department officials unbridled enforcement discretion. See Am.

Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., WMATA (“AFDI”), 901

F.3d 356, 372 (D.C. Cir. 2018) (“[T]he overlap in analysis between unbridled discretion and

vagueness is clear; both doctrines require a court to determine whether a decisionmaker’s

exercise of discretion in allowing or disallowing speech is based upon objective and clear

standards.”); Act Now to Stop War & End Racism Coal. & Muslim Am. Soc’y Freedom Found.

v. District of Columbia, 846 F.3d 391, 412 (D.C. Cir. 2017) (addressing “the analogous context

of a facial First Amendment challenge to a licensing scheme” as part of a vagueness challenge).

The Court agrees with the plaintiffs that the Policy does not provide Department officials with

the requisite “objective and clear standards” for determining whether to deny, revoke, or suspend

a journalist’s PFAC, thereby permitting—and even encouraging—arbitrary and discriminatory

enforcement. See AFDI, 901 F.3d at 372. The Policy therefore contravenes due process.

5

5 The plaintiffs also argue that the Policy violates due process “by failing to provide

sufficient process before the immediate suspension of a reporter’s PFAC.” Pls. Mot. at 28. While

the Court is skeptical that the plaintiffs have established their entitlement to pre-deprivation

process, it has no occasion to decide that issue because the provisions of the Policy allowing for

the “immediate suspension of a reporter’s PFAC,” id., as just discussed, are themselves

constitutionally deficient.

24Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 25 of 40

In sum, the Policy on its face makes any newsgathering and reporting not blessed

by the Department a potential basis for the denial, suspension, or revocation of a journalist’s

PFAC. It provides no way for journalists to know how they may do their jobs without losing

their credentials. The Policy therefore is vague in violation of the Fifth Amendment.

B. The Policy Violates the First Amendment

The plaintiffs assert that the Policy contravenes the First Amendment in two

ways. First, they argue that the Policy imposes unreasonable and viewpoint-discriminatory

restrictions in a nonpublic forum. See Pls. Mot. at 38-40. Second, the plaintiffs contend that the

Policy impermissibly regulates the content of newsgathering, reporting, and publication off

Pentagon grounds. See id. at 34-38. The Court agrees with the plaintiffs’ first argument and

therefore need not reach their alternative argument.

The First Amendment limits the restrictions that the government may impose on

speech, including speech on government property. See Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc. (“Cornelius”), 473 U.S. 788, 799-800 (1985). The level of scrutiny applicable to those

restrictions depends on the type of forum for speech that the government has created. See Ateba

v. Leavitt, 133 F.4th 114, 121 (D.C. Cir. 2025) (“As a general principle, the extent to which the

government can control access to a forum it owns or controls depends on the nature of the relevant

forum.” (citation modified)). The Supreme Court has recognized “three types of government-

controlled spaces: traditional public forums, designated public forums, and nonpublic forums.”

Minn. Voters All. v. Mansky (“Mansky”), 585 U.S. 1, 11 (2018).

The parties agree that the Pentagon’s press spaces are nonpublic forums. See Pls.

Mot. at 39; Defs. Mot. at 37. “A nonpublic forum is government property ‘that is not by

tradition or designation a forum for public communication,’ such as a government office

25Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 26 of 40

building.” Ateba v. Leavitt, 133 F.4th at 121-22 (quoting Mansky, 585 U.S. at 11). While the

government need not “open such spaces for any speech at all, the government creates a

‘nonpublic forum’ when it provides ‘selective access for individual speakers.’” Id. at 122

(quoting Bryant v. Gates, 532 F.3d 888, 895 (D.C. Cir. 2008)). “As a nonpublic forum, access to

the [Pentagon] ‘can be restricted as long as the restrictions are’ viewpoint neutral and

reasonable.” Id. at 123 (quoting Cornelius, 473 U.S. at 800); see Mansky, 585 U.S. at 12.6 The

Court will consider each requirement in turn.

1. The Policy Is Viewpoint Discriminatory

“It is axiomatic that the government may not regulate speech based on its

substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819, 828 (1995). “Content-based laws—those that target speech based on its

communicative content—are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state interests.” Reed v.

Town of Gilbert, 576 U.S. 155, 163 (2015). Viewpoint discrimination is an “egregious form of

content discrimination” in which “the government targets not subject matter, but particular views

taken by speakers on a subject.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

at 829. Restrictions “based on viewpoint are prohibited.” Mansky, 585 U.S. at 11. A speech

6 For this reason, the defendants’ insistence that “access to the Pentagon is a

privilege, not a right” and that the Department “could have decided not to allow any press access

to the Pentagon,” Defs. Mot. at 1, is irrelevant. Because the Department has long chosen to

allow press access to the Pentagon, it cannot deny that access unreasonably or on the basis of

viewpoint. See Ateba v. Leavitt, 133 F.4th at 123; see also Sherrill, 569 F.2d at 129 (“[W]here

the White House has voluntarily decided to establish press facilities for correspondents who need

to report therefrom . . . the protection afforded newsgathering under the first amendment

guarantee of freedom of the press . . . requires that this access not be denied arbitrarily or for less

than compelling reasons.”).

26Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 27 of 40

regulation that is neutral on its face may nonetheless be viewpoint discriminatory if it was

adopted “because of disagreement with the message [the speech] conveys.” Sorrell v. IMS

Health, Inc., 564 U.S. 552, 566 (2011) (quoting Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989)). Stated differently, the government may not impose speech restrictions

that reflect “an effort to suppress expression merely because public officials oppose the speaker’s

view.” Mansky, 585 U.S. at 12 (quoting Perry Educ. Ass’n. v. Perry Local Educators’

Ass’n., 460 U.S. 37, 46 (1983)).

The plaintiffs argue that the Policy is viewpoint discriminatory because “both [its]

purpose and [its] effect . . . is to chill” speech that the Department perceives as unfavorable or

biased. Pls. Mot. at 35. In support, the plaintiffs point to a host of unchallenged public

statements about the media made by Secretary Hegseth, Mr. Parnell, and other members of the

Department’s leadership. See id. at 36; Pls. Reply at 13-14; SUMF at 14-15 (¶¶ 83-89).

The plaintiffs are correct: “The record is replete with undisputed evidence that the

Policy is viewpoint discriminatory.” Pls. Reply at 13. That evidence tells the story of a

Department whose leadership has been and continues to be openly hostile to the “mainstream

media” whose reporting it views as unfavorable, but receptive to outlets that have expressed

“support for the Trump administration in the past.” SUMF at 6, 13 (¶¶ 35, 74-75). The story

begins prior to the adoption of the Policy, when—following extensive reporting on Secretary

Hegseth’s background and qualifications during his confirmation process—Secretary Hegseth

and Department officials “openly complained about reporting they perceive[d] as unfavorable to

them and the Department.” Id. at 6 (¶ 35). Then, in the weeks and months leading up to the

issuance of the Policy, Department officials repeatedly condemned certain news organizations—

including The Times—for their coverage of the Department. For example, in response to

27Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 28 of 40

reporting by The Times on Secretary Hegseth’s alleged misuse of the messaging platform Signal,

Mr. Parnell posted on X to call out The Times “and all other Fake News that repeat their

garbage.” Supp. Boutrous Decl. at Ex. 7. Mr. Parnell decried these news organizations as

“Trump-hating media” who “continue[] to be obsessed with destroying anyone committed to

President Trump’s agenda.” Id. In other social media posts leading up to the issuance of the

Policy, Department officials referred to journalists from The Washington Post as “scum” and

called for their “severe punishment” in response to reporting on Secretary Hegseth’s security

detail. See id. at Exs. 2-4.

The story continues following the issuance of the Policy. When The Times

announced on X that its journalists were declining to sign the Policy’s Acknowledgement and

instead would be handing in their PFACs, Secretary Hegseth responded with a waving-hand

emoji. See Supp. Boutrous Decl. at Ex. 1. In a press conference shortly after the Policy was

issued, Ms. Wilson referred to journalists and news organizations who had previously held

PFACs as “propagandists” who “stopped telling the truth” and who “continue[] to lie.” SUMF

at 14-15 (¶ 84). Other comments from Department officials referred to previous PFAC holders

as “biased,” “adversarial,” “unprofessional,” and lacking “a brain.” Id. at 14-15

(¶¶ 83, 85-86, 89). By contrast, in a post on X announcing the “next generation of the Pentagon

press corps,” Mr. Parnell praised those willing to sign onto the Policy as “circumvent[ing] the

lies of the mainstream media and get[ting] real news to the American people.” Id. at 13

(¶¶ 73-74). Ms. Wilson praised those new PFAC holders as “the absolute best people” and

commended them for being “on board and willing to serve our commander in chief.” Id. at 16

(¶ 91); see also id. at 14 (¶¶ 80-82) (statements by new PFAC holders).

28Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 29 of 40

The defendants make little effort to respond to this voluminous record evidence,

dismissing the aforementioned statements as mere “characterizations of different media outlets”

or “praising one set of journalists and criticizing another.” Defs. Mot. at 32. Instead, the

defendants argue that the record does not support an “aim” to drive disfavored speakers and their

disfavored journalism out of the Pentagon because “the PFAC Policy itself does not contain this

aim.” Id. at 31. That argument, of course, ignores the reality that a policy can be viewpoint

discriminatory even if it is facially viewpoint neutral. See Cornelius, 473 U.S. at 812 (observing

that facially neutral “justifications cannot save an exclusion that is in fact based on the desire to

suppress a particular point of view”); see also Sorrell v. IMS Health, Inc., 564 U.S. at 566; Ward

v. Rock Against Racism, 491 U.S. at 791.

The defendants also contend that the Policy cannot be viewpoint discriminatory

because “the Department conferred with the major news outlets and journalist professional

organizations on revisions” to the Policy and “made particular changes . . . in response to such

concerns.” Defs. Mot. at 31. True, the record reflects that the Department made edits to the

Policy in response to pushback from news organizations. See generally AR at 48-74. But those

revisions appear to be largely superficial—for example, moving language from one section to

another while retaining the substance of the provisions. See id. at 52-63. The record does not

support any suggestion that those changes altered the substance of the Policy or addressed the

thrust of the expressed concerns—that the Policy’s prohibition on “solicitation” was unclear and

the Acknowledgment required journalists to confirm their “understanding” of the Policy’s

unclear provisions. See e.g., id. at 50. To the extent that any conclusion can be drawn from the

back-and-forth between the Department and news organizations, it is just as reasonable to

29Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 30 of 40

conclude that the Department knew the majority of existing PFAC holders would not agree to the

Policy, yet it implemented it anyway.

In their reply brief, the defendants say that the Policy is not viewpoint

discriminatory because journalists from across the political spectrum declined to sign onto it,

including not just The Times but also CNN, Fox News, Newsmax, the Washington Examiner,

and the Daily Caller. See Defs. Reply at 11. True, but beside the point. The record evidence

supports the conclusion that the Policy discriminates not based on political viewpoint but rather

based on editorial viewpoint—that is, whether the individual or organization is willing to publish

only stories that are favorable to or spoon-fed by Department leadership. See, e.g., SUMF at 16

(¶ 91) (Ms. Wilson praising the new PFAC holders for being “on board and willing to serve our

commander in chief”). As counsel for the plaintiffs put it at oral argument, the difference

between the prior and current PFAC holders is their viewpoint on “the nature of the role of the

journalists covering the Pentagon.” OA Tr. at 16-17.

In sum, the undisputed evidence reflects the Policy’s true purpose and practical

effect: to weed out disfavored journalists—those who were not, in the Department’s view, “on

board and willing to serve,” SUMF at 16 (¶ 91)—and replace them with news entities that are.

That is viewpoint discrimination, full stop. And this viewpoint-discriminatory Policy represents

a sea change in the Department’s relationship with the media. In the past, respected journalists

viewed themselves as neutral, independent reporters of news. See Wilson Decl. ¶¶ 14, 16-17;

Barnes Decl. ¶ 21; Burns Decl. ¶¶ 18-21. And even when they were critical of the Defense

Department or other government officials, their credentials were not revoked. See Wilson

Decl. ¶ 16. As Mr. Burns said, no matter how critical he was, “I never experienced any threats—

direct or indirect—to my credential or access to the Pentagon, and I never perceived any risk that

30Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 31 of 40

my reporting would trigger retaliation.” Burns Decl. ¶ 17. The Policy thus violates the First

Amendment.

2. The Policy Is Unreasonable

To withstand First Amendment scrutiny, a policy regulating a nonpublic forum

must be “reasonable in light of the purpose served by the forum.

” Mansky, 585 U.S. at 13

(quoting Cornelius, 473 U.S. at 806). The obvious purpose of the press areas of the Pentagon is

to facilitate newsgathering and reporting on the Department for the benefit of the American

people—or, as the defendants put it, to promote “transparency.” Defs. Mot. at 1. The plaintiffs

contend that the Policy is unreasonable in light of that purpose because it vests Department

officials with “unbridled discretion” to enforce the Policy and fails to provide objective,

workable standards for that enforcement. See Pls. Mot. at 40.

The D.C. Circuit has held “that a restriction is not reasonable under the First

Amendment if it provides the decisionmaker with unbridled discretion to suppress expression—

that is, when the rule is so broad as to provide no meaningful constraint upon the government’s

exercise of the power to squelch speech.” Ateba v. Leavitt, 133 F.4th at 124-25 (citation

modified); see City of Lakewood v. Plain Dealer Publ’g Co. (“City of Lakewood”), 486 U.S.

750, 764 (1988) (holding that the government may not “condition . . . speech on obtaining a

license or permit from a government official in that official’s boundless discretion” (emphasis

omitted)). The “unbridled discretion” doctrine recognizes that “the mere existence . . . of

unfettered discretion . . . intimidates parties into censoring their own speech, even if the

discretion and power are never actually abused.” City of Lakewood, 486 U.S. at 757; see also

AFDI, 901 F.3d at 372 (“[T]he ‘danger of censorship and of abridgment of our precious First

Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.’”

31Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 32 of 40

(quoting Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975))). “[W]hen a licensing statute

allegedly vests unbridled discretion in a government official over whether to permit or deny

expressive activity, one who is subject to the law may challenge it facially without the necessity

of first applying for, and being denied, a license.” City of Lakewood, 486 U.S. at 755-56.

A credentialing scheme that has a “close enough nexus to expression, or to

conduct commonly associated with expression, to pose a real and substantial threat” of

censorship and that vests officials with “boundless discretion” thus violates the First

Amendment. City of Lakewood, 486 U.S. at 759, 764; see also Forsyth County v. Nationalist

Movement, 505 U.S. 123, 130-33 (1992). The plaintiffs assert that the Policy meets the

sufficiently “close . . . nexus to expression” test because “the entire purpose of a PFAC is to

facilitate certain First Amendment-protected activity by journalists on Pentagon grounds.” Pls.

Mot. at 31. The defendants counter that a PFAC merely facilitates entry to portions of the

Pentagon, which they contend “is a noncommunicative, preparatory step in the production of

speech.” Defs. Mot. at 25 (citing Price v. Garland, 45 F.4th 1059, 1068 (D.C. Cir. 2022)). The

defendants’ argument is a non-starter because the D.C. Circuit already has recognized the

application of the unbridled discretion doctrine to a press pass policy. See Ateba v. Leavitt, 133

F.4th at 125.

Turning to the thrust of the arguments, the defendants acknowledge that the

Policy vests Department officials with significant discretion, but they contend that the

Department is entitled to “considerable leeway” in fashioning a press pass credentialing scheme.

Defs. Mot. at 27 (quoting Sherrill, 569 F.2d at 130). The defendants are correct that “[i]t is not

fatal to regulations that they endow officials with some measure of discretion.” Ateba v.

Leavitt, 133 F.4th at 125 (citation modified). But as the defendants themselves acknowledge,

32Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 33 of 40

“the unbridled discretion doctrine is concerned with making explicit the limits on an official’s

discretion.” Defs. Mot. at 27. To that end, any regulations the government issues “must be

reasonably specific and objective, and not leave the decision to the whim of the administrator.”

Ateba v. Leavitt, 133 F.4th at 125 (citation modified). The Department’s Policy does not satisfy

those requirements.

For one, as explained above, the Policy’s operative standard—whether a journalist

poses a “security or safety risk”—provides no meaningful limitations on Department officials.

The defendants once again try to avoid this conclusion by invoking Sherrill to argue that “[t]he

Department can hardly predict every conceivable form that a security risk in the Pentagon might

take, and it is entitled to rely on standards at a sufficient level of generality to allow responsive

action to be taken in cases presenting novel security risks.” Defs. Mot. at 26; see Sherrill, 569

F.2d at 130. The Court has already explained why the D.C. Circuit’s reasoning in Sherrill lends

little support to the defendants’ position, see supra Section III.A, and need not reiterate that

explanation here.

What is more, even when the Policy purports to clarify the bases upon which a

PFAC may be denied or revoked, it expressly retains authority for a Department official to make

a different choice—for any reason or for no reason at all. As the plaintiffs summarize:

“Information in specified categories ‘may’ (or may not) be ‘controlled unclassified information’;

prohibited ‘[s]olicitation may’ (or may not) ‘include direct communications with [Department]

personnel or general appeals’; a reporter who receives or discloses ‘unauthorized’ information

‘may’ (or may not) be deemed a ‘security or safety risk’; and a reporter who is deemed a

‘security or safety’ risk ‘may’ (or may not) lose his or her PFAC.” Pls. Mot. at 32-33 (alterations

in original) (citations omitted); see AR at 6, 12-13. On top of these layers upon layers of

33Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 34 of 40

discretion, the Policy contains the express caveat that a “security or safety risk” determination

will be made “on a case-by-case basis reviewing the totality of the circumstances” and will turn

on “the unique facts and circumstances of each case.” AR at 12-13. The Policy thus supplies no

concrete limitations, only “illusory ‘constraints’” that can be invoked or ignored at the

Department’s pleasure. City of Lakewood, 486 U.S. at 769.

Indeed, the Department has already shown its discretion to be unconstrained by

the Policy. For example, James O’Keefe applied for and was granted a PFAC notwithstanding

that he pleaded guilty to crimes involving “trespassing” and “deceit”—offenses that the Policy

explicitly provides as bases for “presumptive[ly]” deeming an applicant a “security or safety

risk.” AR at 15; see SUMF at 14 (¶ 79). The defendants offer no explanation for the

Department’s decision to give Mr. O’Keefe a PFAC despite his presumptive ineligibility, other

than that “the Policy’s presumptive disqualifiers . . . are not automatic.” Defs. Reply at 16. “The

Department’s decision to grant O’Keefe a PFAC,” the defendants say, “is consistent with the

Policy’s terms.” Id. But that is precisely the problem. Nothing in the Policy prevents the

Department from granting Mr. O’Keefe a PFAC, just like nothing in the Policy would prevent

the Department from, say, denying the PFAC application of a journalist from The Times who

pleaded guilty to the exact same crimes. Both scenarios would be consistent with the Policy

because nothing in the Policy proscribes its arbitrary enforcement. See Forsyth County v.

Nationalist Movement, 505 U.S. at 133.

As another example, the Department has stated that it understands the Policy’s

prohibition on solicitation “to forbid the Washington Post from stating publicly that it ‘wants to

hear from Defense Department civilians and service members about changes within the Pentagon

and throughout the U.S. Military.’” Pls. Reply at 6; see Defs. Mot. at 27-28; SUMF at 15 (¶ 88).

34Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 35 of 40

Meanwhile, the Department deemed permissible a social media post by Laura Loomer that

likewise called for tips in the context of a post in which Ms. Loomer stated, “LOOMERED is

now a credentialed outlet at the Pentagon,” and “I look forward to covering the Pentagon and

breaking more stories that impact our country and our national security.” Boutrous Decl. at

Ex. 20; see SUMF at 15 (¶¶ 87-88). The defendants attempt to distinguish those two calls for

tips on the grounds that The Washington Post’s tip line “appears at the end of military defense

related stories,” whereas Ms. Loomer’s post is supposedly more “general” and invites tips “on

any matter.

” Defs. Mot. at 27-28. The Court is unpersuaded that there is any distinction between

The Washington Post’s tip line and Ms. Loomer’s, other than that The Washington Post’s motto

is “Democracy Dies in Darkness,” while Ms. Loomer’s apparently is willingness to “serve [the]

commander in chief.” See SUMF at 14, 16 (¶¶ 83-84, 91). But the problem is that nothing in the

Policy explicitly prevents the Department from treating these two nearly identical tip lines

differently. As an example, even if the Department determined that Ms. Loomer’s request for

tips constituted “solicitation” under the Policy, it could still decide in its discretion not to revoke

her PFAC for any reason or for no reason at all.7

The Policy also is unreasonable and therefore violates the First Amendment for

the related reason that it is not “guided by objective, workable standards.” Mansky, 585 U.S.

at 21; see AFDI, 901 F.3d at 372 (observing that “whether the discretion vested in a government

official to permit or prohibit speech is ‘guided by objective, workable standards’” is a “related

inquiry” to questions of vagueness and unbridled discretion (quoting Mansky, 585 U.S. at 21)).

7 In a similar vein, the Court is aware of recent reporting that the Pentagon has

barred press photographers from briefings on the ongoing U.S.-Israeli war with Iran after they

published photos of Secretary Hegseth that his staff deemed “unflattering.” See Scott Nover,

Pentagon Bars Press Photographers Over ‘Unflattering’ Hegseth Photos, WASH. POST (Mar. 11,

2026), https://perma.cc/CP92-234S.

35Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 36 of 40

As described throughout this Opinion, the Policy contains expansive and expressly noncommittal

language that provides no objective basis upon which to judge the Department’s decision to grant

or deny a PFAC application. For that reason, among the others described herein, it cannot stand.8

C. The Remedies

1. The Plaintiffs Are Entitled to Injunctive Relief

To obtain a permanent injunction, the plaintiffs must demonstrate:

(1) that [they] ha[ve] suffered an irreparable injury; (2) that

remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering

the balance of hardships between the plaintiff[s] and

defendant[s], a remedy in equity is warranted; and (4) that the

public interest would not be disserved by a permanent

injunction.

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010). The Court determines that

the injunction factors weigh in the plaintiffs’ favor.

First, the plaintiffs stand to suffer immediate irreparable harm absent equitable

relief. As the D.C. Circuit has recognized in the context of the First Amendment’s free speech

guarantee, “[t]he loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Pursuing Am.’s Greatness v. Fed. Election

Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016) (citation modified) (quoting Elrod v. Burns, 427

U.S. 347, 373 (1976) (plurality opinion)); see also Karem, 960 F.3d at 667 (“As our court has

explained, a prospective violation of a constitutional right constitutes irreparable injury for

8 When asked by the Court during oral argument whether “the standards here [are]

objective,” counsel for the defendants responded that the Policy’s standards are “more

subjective.” OA Tr. at 41. The defendants subsequently submitted a notice to the Court

purporting to walk back that response. See Notice of Clarification. The Court will give counsel

the benefit of the doubt and assume that he simply misspoke during the argument. In any event,

neither counsel’s statement at argument nor the subsequent “clarification” makes much of a

difference to the Court’s analysis because neither changes what the Policy actually says.

36Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 37 of 40

purposes of seeking equitable relief.” (citation modified)). In Sherrill, the D.C. Circuit held that

a journalist “arbitrarily excluded from sources of information” suffers irreparable First

Amendment harm. Sherrill, 569 F.2d at 129-30. This harm is “not merely . . . abstract” or

“theoretical” because journalists’ “First Amendment interest depends on [their] ability to freely

pursue ‘journalistically productive conversations.’” Karem v. Trump, 404 F. Supp. 3d 203, 217

(D.D.C. 2019). Without their PFACs, the plaintiffs lack “the access to pursue those

conversations,

” and because “the news is time-sensitive and occurs spontaneously, that lack of

access cannot be remedied retrospectively.” Id.

Second, the defendants do not meaningfully dispute that the remedies available at

law are inadequate. See Karem v. Trump, 404 F. Supp. 3d at 217 (“[T]he only way to remedy

the injury [from the loss of a press credential] is to return the hard pass and the access that comes

with it.”).

Third and fourth, the balance of equities and public interest factors, which “merge

when the Government is the opposing party,

” Nken v. Holder, 556 U.S. 418, 435 (2009), weigh

in the plaintiffs’ favor. On the plaintiffs’ side, the constitutional interests at stake are hard to

overstate. As Mr. Burns put it, “[t]he new policy makes accurate reporting more difficult, makes

America less informed and less safe—particularly in times of crisis—and ultimately harms both

the Department and the American public whom the Department serves.” Burns Decl. ¶ 23. On

the defendants’ side, the Department surely has a legitimate interest in managing security risks at

the Pentagon. “The Constitution, however, does not permit [it] to prioritize any policy goal over

the Due Process Clause” or the First Amendment, and “enforcement of an unconstitutional law is

always contrary to the public interest.” Karem, 960 F.3d at 668 (alteration in original) (quoting

Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)); see also Legend Night Club v.

37Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 38 of 40

Miller, 637 F.3d 291, 302-03 (4th Cir. 2011) (“[The government] is in no way harmed by

issuance of an injunction that prevents [it] from enforcing unconstitutional restrictions.”).

The Court therefore will grant the plaintiffs’ request for injunctive relief.

2. The Court Will Vacate the Policy

While remand without vacatur is sometimes appropriate, it is “[t]he ordinary

practice” and “normal course” to “vacate unlawful agency action.” United Steel v. Mine Safety

& Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019). Courts will opt to remand without

vacating only in “rare cases” where the “deficiencies of the [agency] action” are not “serious[]”

or the “disruptive consequences of vacatur” are significant. Am. Bankers Ass’n v. Nat’l Credit

Union Admin., 934 F.3d 649, 674 (D.C. Cir. 2019) (quoting United Steel v. Mine Safety &

Health Admin., 925 F.3d at 1287). In this case, neither of those factors governing the exercise of

the Court’s discretion weighs against vacatur. See Anderson v. U.S. Dep’t of Hous. & Urb.

Dev., 731 F. Supp. 3d 19, 45 (D.D.C. 2024) (“[T]his case is not so exceptional that it warrants

remand without vacatur.” (citation modified)).

First, the Policy’s deficiencies are extremely serious—indeed, the Policy

contravenes both the First and Fifth Amendments. See Am. Bankers Ass’n v. Nat’l Credit Union

Admin., 934 F.3d at 674. The defendants do not explain how the Department would “be able

readily to cure” the defects identified in the Court’s opinion. Reg’l Med. Ctr. v. Sebelius, 566

F.3d 193, 198 (D.C. Cir. 2009). The defendants’ suggestion that the Department could “provide

additional explanation” on remand, Defs. Mot. at 44, would not suffice to cure the constitutional

deficiencies.

Second, in this case the “disruptive consequences of vacatur” are minimal. Am.

Bankers Ass’n v. Nat’l Credit Union Admin., 934 F.3d at 674. Contrary to the defendants’

38Case 1:25-cv-04218-PLF Document 35 Filed 03/20/26 Page 39 of 40

suggestion, the plaintiffs ask the Court to vacate not the entire Policy but only certain challenged

provisions, leaving in place requirements that are no less stringent than in the previous regime.

See Cath. Soc. Serv. v. Shalala, 12 F.3d 1123, 1128 (D.C. Cir. 1994) (“[C]ourts may ‘set aside’

only the part of a rule found to be invalid.”). Given that the plaintiffs do not seek vacatur of the

Policy’s issuance and renewal guidelines, the Court discerns no reason why the Department

could not continue “processing” PFACs. Moreover, the defendants do not dispute that the

Department’s previous PFAC requirements served its proffered interests in safety and security

for decades and that nothing in particular triggered the need for increased measures. See SUMF

at 4, 7-8 (¶¶ 21, 44). The defendants’ assertion that vacatur would “compromise the safety of the

Pentagon” therefore is unfounded. Defs. Mot. at 45.

In short, the defendants have not shown that the Department is entitled to a

remand without vacatur. Accordingly, the Court will vacate the challenged provisions of the

Policy.

IV. CONCLUSION

The Court recognizes that national security must be protected, the security of our

troops must be protected, and war plans must be protected. But especially in light of the

country’s recent incursion into Venezuela and its ongoing war with Iran, it is more important

than ever that the public have access to information from a variety of perspectives about what its

government is doing—so that the public can support government policies, if it wants to support

them; protest, if it wants to protest; and decide based on full, complete, and open information

who they are going to vote for in the next election. As Justice Brandeis correctly observed,

“sunlight is the most powerful of all disinfectants.” N.Y. Times Co. v. Sullivan, 376 U.S. 254,

305 (1964) (Goldberg, J., concurring) (footnote omitted).

39Case 1:25-cv-04218-PLF Document 35 Filed 03/20