Network news execs may be rattling their sabres about Pentagon restrictions on Persian Gulf coverage, but they so far have opted against joining in a federal lawsuit challenging those guidelines on constitutional grounds.
The suit was filed in New York Federal Court on Jan. 10 by Newsday columnist Sydney Schanberg, Michael Klare (a correspondent for the Nation), authors E.L. Doctorow and William Styron, and nine publications, including the Village Voice and Harpers. It asks for an injuction to prevent the Pentagon from enforcing restrictions on coverage of the gulf conflict.
The suit has been assigned to Leonard Sand, who has scheduled a deposition of Pentagon spokesman Pete Williams for the week of Feb. 4.
The challenged restrictions bar reporters from the scene of military action except in pre-approved pools, limit photographing the wounded and dead, and subject all reports to “security review.”
Attorney Floyd Abrams, a First Amendment specialist, says the suit raises valid issues but will be a tough one to win. “There’s a significant judicial inclination not to strike down limitations of press coverage during a war,” says Abrams. “But make no mistake, these regulations are censorship and go beyond their stated intent. No enlisted [person] is going to make critical statements talking to a reporter accompanied by an officer.”
But another prominent First Amendment lawyer, who spoke on the condition of anonymity, says: “In the theater of war, a lot of things are permissible that would otherwise be invalid. I don’t think they will get very far with this suit.”
News execs expressed skepticism about the merits of a legal challenge to the rules. An ABC News spokeswoman said that while the challenge was discussed, “we’re just not convinced that the restrictions can be challenged on constitutional grounds.”
“Our lawyers have looked closely into it,” said CBS News spokesman Tom Goodman. “At this point, we feel we’re doing the right thing by lobbying [Defense] Secretary [Dick] Cheney and working through our Washington bureau chief at the Pentagon.” Goodman added that legal action “might be an option somewhere down the line.”
“We were certainly informed about the lawsuit, but litigation isn’t always the most effective means to an end,” commented a network attorney. “It’s hard to litigate against the Pentagon and cover a war at the same time.”
But some observers say the major news organizations are backing away from the suit for a different reason: They don’t want to alienate their audience by appearing to be at odds with the military, which is garnering strong public support.
“The news organizations are concerned about their image,” says Gannett Foundation Media Center exec director Everette Dennis. “They see the polls that show 85% of the public supports the administration’s actions in the gulf and only 60% approve of the press coverage of the war.”
Not surprisingly, Schanberg is sharply critical of the major news organizations’ failure to join the suit. “I think heads are being ducked and put in the sand,” he says. “Nobody wants to risk being called a scum-of-the-earth commie, liberal bastard.”
Schanberg says the plaintiffs “will try to show that the Pentagon restrictions aren’t motivated by security concerns because the press never breached security in World War II, Korea or Vietnam.”
A lawyer for a major east coast newspaper adds that there are fears that if the plaintiffs lose it could mean more restrictions than currently exist. “We just don’t think this is likely to win,” he says. “It could create bad law.”
Schanberg rejects the notion that the suit could create a legal precedent legitimizing the Pentagon’s restrictions.
“Whether or not the case produces a final legal victory, the lobbying process can only be assisted by the legal process,” he said. “Victory comes in many forms in our society.”