Judge lets Pentagon fire three Stars and Stripes journalists

Stars and Stripes is owned and partly funded by the Defense Department.

Stars and Stripes has a long record of editorial independence from military leadership.

The Pentagon this year repealed regulations that had protected Stars and Stripes editorial independence.

Pentagon guidance said Stars and Stripes content must be consistent with “good order and discipline.”

The Stars and Stripes ombudsman was forced out in April.

Editor Erik Slavin and reporter Lara Korte appeared in a July CBS Sunday Morning segment about Stars and Stripes editorial independence.

Korte said on CBS that she worked for Stars and Stripes, not the Pentagon or any administration.

Slavin said censorship — being ordered to run a Pentagon-written story in place of an accurate one — would be a red line.

Slavin and Korte requested and received permission from superiors before the CBS interview.

Slavin and Korte were introduced by job titles and interviewed in their offices.

Stars and Stripes published a report on hardships aboard the USS Abraham Lincoln, including food and water shortages and mental-health concerns.

Pentagon officials ordered publisher Max Lederer to issue separation notices to Slavin and Korte.

Lederer refused to fire Slavin and Korte.

Lederer announced his retirement.

Publisher Max Lederer, editor-in-chief Erik Slavin and reporter Lara Korte received separation notices and were placed on administrative leave.

The Pentagon charged Slavin and Korte with insubordination over the CBS interview, and Lederer for refusing to fire them.

The three sued in late August in U.S. District Court in Washington.

The lawsuit says they were punished in retaliation for the Abraham Lincoln coverage.

U.S. District Judge Trevor McFadden denied a temporary restraining order and preliminary injunction, allowing the Pentagon to proceed with the firings.

McFadden’s opinion was 24 pages.

McFadden is a Trump appointee.

McFadden found Slavin and Korte spoke as part of official duties, not as private citizens.

McFadden found the journalists are unlikely to succeed on their First Amendment claim and did not show irreparable harm.

McFadden wrote that official-capacity government speech is not protected by the First Amendment, and that the scheme does not clearly offend it.

McFadden wrote that the plaintiffs’ real complaint seems to be that they were victims of a cruel bait-and-switch.

McFadden wrote they are being fired for giving pre-approved interviews on the paper’s behalf in which they largely toed the company line.

The Pentagon and McFadden said the Lincoln story was unrelated; separation notices were prepared before it ran.

McFadden wrote that perhaps discovery will strengthen the plaintiffs’ case.

The ruling is not a final decision in the lawsuit.

Attorney Taryn Wilgus Null argued the journalists spoke as private citizens and as sources, not as reporters on official duty.

Null said government employees do not lose First Amendment free-speech rights.

Justice Department lawyer Brett Covington said Slavin and Korte spoke as Stars and Stripes personnel and routinely did interviews as part of their jobs.

Covington cited a Korte email saying she would “rather eat glass” than let the government tell her what to write.

The journalists and their lawyers said they were disappointed in the ruling.

McFadden noted Slavin had given many prior interviews, including 16 about his role as editor.

Lawyers said Navy Capt. William Urban told Korte she should apologize to the Pentagon if she wanted to keep her job.

Lederer did not participate in the CBS interview.

Supreme Court precedent strips First Amendment protection from statements public employees make pursuant to official duties.