- The Washington Times - Tuesday, February 3, 2004

There is no constitutional right allowing journalists to cover troops in a war zone, a U.S. appeals court in Washington ruled yesterday.

The ruling came in a suit brought by publisher Larry Flynt and Hustler magazine over access to U.S. troops in Afghanistan.

Mr. Flynt contended that there was a “First Amendment right of the news media to have access to U.S. troops in combat operations,” and that the Pentagon’s delay in allowing Hustler correspondents access to the troops in Afghanistan violated that right.

Mr. Flynt requested, in an October 2001 letter to the Defense Department, that Hustler correspondents “be permitted to accompany ground troops on combat missions and that said correspondents be allowed free access” to the theater of operations in Afghanistan.

At the time, the United States was preparing to invade Afghanistan, where the fundamentalist Taliban regime was sheltering Osama bin Laden and other leaders of al Qaeda.

Eventually, a Pentagon official sent Mr. Flynt to the Fifth Fleet Public Affairs Office, and after a further exchange of letters, a Hustler correspondent was allowed into Afghanistan.

But Mr. Flynt sued the Pentagon for its restrictive access and for the delay in allowing his correspondent access to the theater of war. The publisher and magazine sought an injunction to force the Pentagon to revise its policy.

A federal judge dismissed the suit, saying the controversy was not “ripe” — the dispute was still being worked out — and questioning Hustler’s “standing.”

In order to have “standing” to bring a suit, a plaintiff must show some injury.

The appeals court yesterday also ruled against Mr. Flynt, but on different and more sweeping grounds — one that might have impact on news organizations as a whole.

” … We find that there is no constitutional right for the media to embed with U.S. military forces in combat,” the appeals court said in part.

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