Judge McFadden: Denies Stars and Stripes First Amendment Injunction

• A federal judge denied a preliminary injunction for three fired Stars and Stripes employees who alleged First Amendment retaliation.
• Editor-in-Chief Erik Slavin, reporter Lara Korte, and publisher Max Lederer were terminated after Slavin and Korte discussed editorial independence in a pre-approved CBS News interview.
• Judge Trevor McFadden ruled the journalists spoke in their official capacity, not as private citizens, thus limiting their First Amendment protections.
• The Department of War had previously moved to repeal rules guaranteeing Stars and Stripes' independence and imposed new restrictions on the newsroom.
• The judge suggested that future discovery might strengthen the plaintiffs’ case, despite the current ruling.

The judge explicitly left open the possibility for the plaintiffs to strengthen their case as the litigation progresses, stating, "Perhaps discovery will strengthen plaintiffs’ case."

U.S. District Judge Trevor McFadden recently denied a request for a preliminary injunction sought by three former Stars and Stripes employees, effectively allowing the Pentagon's termination of the journalists to proceed. The ruling came after Editor-in-Chief Erik Slavin, reporter Lara Korte, and publisher Max Lederer were placed on administrative leave on August 29, leading them to file a lawsuit two days prior, on August 27. Their legal action alleged First Amendment retaliation by the Department of War.

The trio's dismissal followed comments made by Slavin and Korte during a pre-approved CBS News interview. This segment, titled "The battle over Stars and Stripes," focused on changes being implemented by the Pentagon at the military news outlet and the potential implications for its editorial independence. While Slavin and Korte participated in the interview, Lederer's termination stemmed from his refusal to deliver the notices of dismissal to his colleagues, a detail Judge McFadden noted was, by itself, grounds for his termination.

In his 24-page opinion, Judge McFadden, a Donald Trump appointee, concluded that the journalists were unlikely to succeed on their First Amendment claims because they appeared to have spoken as part of their official duties rather than as private citizens. This distinction is critical in cases involving government employee speech rights, as individuals acting in their official capacity have significantly more limited First Amendment protections compared to private citizens. The judge emphasized that, similar to how a government accountant can face discipline for professional shortcomings, a government spokesperson can be held accountable for their communication skills within their official role.

To support his reasoning, Judge McFadden referenced the First Circuit's decision in *Foley v. Town of Randolph*. In that case, a fire chief was terminated after publicly attributing a house fire to insufficient funding and staffing. The appeals court upheld the termination, stating that the chief would "naturally be regarded as the public face of the department" when speaking in his official capacity at a press conference. Applying this precedent, the judge found that Slavin, who regularly conducts interviews as Editor-in-Chief and had sought prior approval for the CBS News segment, was clearly acting in an official capacity. Similarly, reporter Lara Korte, who covers the Middle East, was introduced by her title and appeared in her office during her interview, further indicating she was speaking officially.

The terminations and subsequent legal battle unfold against a backdrop of increasing Pentagon oversight over Stars and Stripes. In January, the Department of War initiated steps to repeal existing rules that had historically guaranteed the outlet's independence, labeling them as outdated and unnecessary. This was followed in March by a memorandum from Deputy Secretary of War Stephen Feinberg, which imposed new restrictions on the newsroom. These included a ban on using wire services like the Associated Press and prohibiting the publication of any content deemed inconsistent with "good order and discipline of the military," directly impacting Stars and Stripes editorial independence.

Despite denying the preliminary injunction, Judge McFadden acknowledged the unusual circumstances surrounding the firings. He noted that the reporters were "fired for giving preapproved interviews on their papers’ behalf," describing their situation as a "cruel bait-and-switch." The judge explicitly left open the possibility for the plaintiffs to strengthen their case as the litigation progresses, stating, "Perhaps discovery will strengthen plaintiffs’ case." Taryn Null, a lawyer representing the journalists through the Democracy Defenders Fund, argued that her clients were indeed speaking as private citizens, pointing out that Korte was offered reinstatement if she apologized for her CBS News comments, which Null suggested indicated an attempt to suppress specific speech and control employees.

This ruling clarifies the limited First Amendment protections for government employees speaking in their official capacity, particularly for those in communication roles, and highlights the importance of distinguishing between official duties and private citizen speech when advising on potential retaliation claims. Lawyers should monitor this case for further developments, as the judge indicated discovery might strengthen the plaintiffs' position.

Source: Original reporting via Courthouse News Service.