Flynt, Larry v. Rumsfeld, Donald H.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 21, 2003 Decided February 3, 2004

No. 03-5075

LARRY FLYNT AND L.F.P., INC.,
APPELLANTS

v.

DONALD H. RUMSFELD,
IN HIS OFFICIAL CAPACITY AS SECRETARY OF DEFENSE AND
DEPARTMENT OF DEFENSE,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 01cv02399)

Paul J. Cambria, Jr. argued the cause for appellants.
With him on the briefs were Roger W. Wilcox, Jr. and John
G. Perazich.
Michael S. Raab, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Peter D. Keisler, Assistant Attorney General, Roscoe C. How-
ard, Jr., U.S. Attorney, and Mark B. Stern, Attorney, U.S.
Department of Justice.
Before: EDWARDS, SENTELLE and HENDERSON, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Larry Flynt and L.F.P., Inc. (the
company that publishes Hustler magazine) (collectively
‘‘Flynt’’ or ‘‘appellants’’) sued Donald H. Rumsfeld, Secretary
of Defense, and the United States Department of Defense
(‘‘DOD’’) seeking, inter alia, injunctive relief against interfer-
ence with its exercise of a claimed First Amendment right of
the news media to have access to U.S. troops in combat
operations, and claiming that DOD’s delay in granting Hus-
tler’s reporter access to U.S. troops in Afghanistan infringed
that right. They further argued that DOD’s Directive con-
trolling media access to military forces facially violates this
same constitutional right. The District Court dismissed
Flynt’s as-applied constitutional claims for lack of ripeness
and standing, and refused to exercise its discretion under the
Declaratory Judgment Act to declare the pertinent DOD
Directive facially unconstitutional. This appeal followed. Be-
cause we find that no such constitutional right exists, we will
affirm the District Court’s decision on other grounds.

I. Background

A. Hustler’s attempts to gain access
Shortly after the September 11, 2001, terrorist attacks, the
United States military began combat operations in Afghani-
stan in support of the global war on terrorism. On October
30, 2001, Flynt wrote a letter to the Honorable Victoria
Clarke, Assistant Secretary of Defense for Public Affairs,
requesting that Hustler correspondents ‘‘be permitted to
accompany ground troops on combat missions and that said
correspondents be allowed free access to the theater of
United States military operations in Afghanistan and other
countries where hostilities may be occurring as part of Opera-
 3

tion Enduring Freedom.’’ Two weeks later, on November 12,
2001, Flynt wrote Clarke again requesting the same access
and complaining about her failure to respond to his October
30 letter. Three days later, on November 15, Clarke sent
Flynt a fax stating that access to ground operations was not
immediately possible because ‘‘TTT the only U.S. troops on the
ground in Afghanistan are small numbers of servicemen
involved in special operations activity.’’ Clarke explained that
‘‘[t]he highly dangerous and unique nature of their work
makes it very difficult to embed media’’ with ground troops,
but also stated that there had been ‘‘extensive’’ media access
to other aspects of military operations. Specifically, ‘‘[s]cores
of reporters and photographers have covered the [air] strikes,
witnessed the humanitarian drops and interviewed dozens of
[soldiers].’’ Clarke then provided Flynt with contact informa-
tion for the Fifth Fleet Public Affairs Officer so that Hustler
could have similar access.
Not satisfied with the access provided by DOD, and that
other media outlets had received, Flynt did not contact the
Fifth Fleet Public Affairs Officer; rather, he filed this lawsuit
the day after he received Clarke’s fax. Shortly after filing
suit, Flynt sent another letter to Clarke on January 15, 2002,
stating that ‘‘I did not contact [the Fifth Fleet Public Affairs
Officer] because I did not request any such access or similar
access. Rather, I specifically requested reporter access to
actual battlefield combat activities.’’ The letter also charac-
terized Clarke’s description of special operations activities as
vague. Two weeks later, Flynt sent another letter to Clarke
requesting an immediate response to his January 15 letter.
Clarke responded by letter on February 4, 2002, reiterated
DOD’s position, and again described the access that was
currently available. Furthermore, she stated that ‘‘all [your
reporter] needs to do is work with [DOD’s] people on the
ground.’’ She also provided Flynt with an extensive list of
contact persons and explained that DOD decisions regarding
media access were controlled by Department of Defense
Directive 5122.5.
On February 19, 2002, Flynt’s lawyer sent an email to
Lieutenant Commander Bonnie Hebert, one of the contacts
 4

Clarke had provided, requesting ‘‘permission to have Hustler
magazine correspondents accompany and report on the activi-
ties of American soldiers on the ground in Afghanistan who
are engaged in combat actions.’’ Hebert responded three
days later, asking ‘‘[w]here exactly in Afghanistan would you
like to go?’’ and requesting the identity of the reporter.
This began a series of communications that ultimately result-
ed in David Buchbinder, a Hustler reporter, arriving at
Bagram Air Force Base by May 7, 2002. Once in Afghani-
stan, Buchbinder placed himself on a list of reporters await-
ing access to ground units. Since his arrival in Afghanistan,
Buchbinder has filed several stories, at least one of which
shows he has accompanied troops on a search for al Qaeda
operatives.

B. The Directive
As stated above, DOD decisions regarding media access to
combat troops are guided by Department of Defense Di-
rective 5122.5. This Directive, issued on September 27, 2000,
assigns the responsibility of ‘‘[e]nsur[ing] a free flow of news
and information to the news media’’ to the Assistant Secre-
tary of Defense for Public Affairs. Directive 5122.5. The
Directive contains three enclosures. At issue in this case is
Enclosure 3, entitled ‘‘Statement of DOD Principles for News
Media.’’ This enclosure begins with the command that
‘‘[o]pen and independent reporting shall be the principal
means of coverage of U.S. military operations.’’ ¶ E3.1.1. It
then outlines the manner in which such coverage should
occur. It allows for media pools, limited numbers of press
persons who represent a larger number of news media organ-
izations and share material, but states that pools are not to be
the ‘‘standard means of covering U.S. military operations.’’
¶ E3.1.2. Rather, pools are only to be used when space is
limited or areas to be visited are extremely remote. ¶ E3.1.3.
It also directs that ‘‘field commanders should be instructed to
permit journalists to ride on military vehicles and aircraft
when possible.’’ ¶ E3.1.7. In sum, the Directive represents
an attempt to facilitate broad media coverage, and contains
few restrictions, including limited restrictions on media com-
 5

munications for security purposes and expulsion for members
of the media who violate the ground rules. Id. at ¶ ¶ E3.1.4.
& E3.1.8. It also includes the caveat that ‘‘[s]pecial opera-
tions restrictions may limit access in some cases.’’ ¶ E3.1.5.

C. Proceedings Below
Flynt and L.F.P., Inc., filed their initial complaint against
the DOD and Secretary Rumsfeld on November 16, 2001,
requesting preliminary and permanent injunctive relief. In
addition, Flynt challenged Directive 5122.5 on the grounds
that (1) enforcement of the policies violated his historical and
constitutional rights of access to the battlefield; (2) enforce-
ment of the policies amounted to a content-based prior re-
straint that deprived him of his First Amendment rights; (3)
DOD’s denial of his request was not narrowly tailored to
further a substantial government interest; and (4) DOD’s
denial was arbitrary and capricious and made without refer-
ence to specific and objective standards.
After a hearing on Flynt’s motion for a preliminary injunc-
tion, the District Court denied the motion, stating that it was
‘‘persuaded that in an appropriate case there could be a
substantial likelihood of demonstrating that under the First
Amendment the press is guaranteed a right to gather and
report news’’ about U.S. military operations, subject to rea-
sonable regulations. Flynt v. Rumsfeld, 180 F. Supp. 2d 174,
175 (D.D.C. 2002). That being said, the District Court deter-
mined that Flynt’s likelihood of success on the merits was
‘‘far from clear,’’ id. at 176, and that because of the quickly
evolving factual situation any judicial decisions would ‘‘have to
await the development of a fuller record,’’ id. at 177.
On January 17, 2002, nine days after the District Court
denied his motion for a preliminary injunction, Flynt filed an
amended complaint. The amended claim presented ten
claims, including: (Claim 1) a request for a declaration that
the First Amendment guarantees Flynt a right of access to
the battlefield, subject to reasonable regulations for safety
and security; (Claims 2–4) a claim that DOD Directive 5122.5
fails to recognize and protect Flynt’s First Amendment right
 6

of access to the battlefield and DOD’s denial of his request
violated these same rights; (Claim 5) an assertion that the
Directive does not contain constitutionally required definite
and objective standards for determining press access; (Claim
6) a claim that the Directive fails to place reasonable time
limits on DOD’s decision-making process; (Claim 7) a conten-
tion that the Directive does not provide for prompt adminis-
trative appeal; (Claims 8–9) a claim that the Directive impos-
es an unlawful content-based prior restraint on the media’s
constitutional right to battlefield access; and (Claim 10) a
request for preliminary and permanent injunctive relief. By
motion filed February 7, 2002, DOD moved to dismiss the
amended complaint pursuant to Federal Rule of Civil Proce-
dure 12(b)(1) and 12(b)(6) or, in the alternative, for summary
judgment under Federal Rule of Civil Procedure 56(c).
In considering DOD’s motion, the District Court grouped
appellants’ claims as follows: claims 1–3, 8–9, and portions of
claims 4–7 that alleged DOD improperly applied Enclosure 3
to Flynt’s request, were considered as ‘‘as-applied claims;’’
and claims 4–7 were considered as facial challenges to Enclo-
sure 3. Flynt v. Rumsfeld, 245 F. Supp. 2d 94, 99–100, 103
(D.D.C. 2003). The District Court also considered Flynt’s
request for injunctive relief.
With regard to the as-applied claims, the District Court
held they were unripe because the record did not reflect DOD
ever made a final decision with respect to Flynt’s request.
Id. at 102. Furthermore, Flynt would suffer no concrete
hardship by delaying review. Id. at 103. Also citing the
absence of a final decision, the District Court held Flynt had
not suffered a concrete injury-in-fact and, thus, had no stand-
ing to press the as-applied claims. Id.
Turning to the facial challenges, the District Court held
that Flynt had both constitutional and prudential standing.
Id. at 104. The Court stated that because the DOD had
already crystallized its policies in Enclosure 3, the ‘‘posture of
these particular claims ma[de] it inappropriate to dismiss on
prudential ripeness grounds.’’ Id. at 105. The District Court
also held that dismissal on political question grounds was
 7

inappropriate because Flynt’s claims did not ‘‘implicate the
President’s activities as Commander in Chief or the authority
of the Secretary of Defense to direct military actions,’’ nor did
they require a court to apply principles beyond normal judi-
cial competence. Id. at 107. The District Court did, howev-
er, refuse to exercise its discretion under the Declaratory
Judgment Act to consider Flynt’s facial claims. Id. Citing
the considerable discretion the Declaratory Judgment Act
gives to district courts, the court relied on the absence of a
concrete controversy and the uncertainty surrounding Flynt’s
constitutional claims in withholding declaratory relief. Id. at
109–10. The court further refused to grant injunctive relief.
Id. This appeal followed.

II. Analysis
This court reviews de novo the District Court’s dismissal of
a complaint for lack of subject matter jurisdiction. Empagran
S.A. v. F. Hoffman–LaRoche, LTD., 315 F.3d 338, 343 (D.C.
Cir. 2003). In our review, we assume the truth of the
allegations made and construe them favorably to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). We review the
District Court’s decision to withhold declaratory relief for an
abuse of discretion. Wilton v. Seven Falls Co., 515 U.S. 277
(1995).

A. Appellants’ Claims
As a threshold matter, it is important to clarify the right
appellants seek to protect. In candor, it is not at all clear
from appellants’ complaint below or briefs in this court pre-
cisely what right they believe was violated or contend the
courts should vindicate. After some pressing, at oral argu-
ment it became clear that they claimed a right, protected
under the First Amendment, in their own words, to ‘‘go[ ] in
[to battle] with the military.’’ This right is different from
merely a right to cover war. The Government has no rule–at
least so far as Flynt has made known to us–that prohibits the
media from generally covering war. Although it would be
dangerous, a media outlet could presumably purchase a vehi-
 8

cle, equip it with the necessary technical equipment, take it to
a region in conflict, and cover events there. Such action
would not violate Enclosure 3 or any other identified DOD
rule.
With that distinction made, appellants’ claim comes more
sharply into focus. They claim that the Constitution guaran-
tees to the media–specifically Hustler’s correspondent–the
right to travel with military units into combat, with all of the
accommodations and protections that entails–essentially what
is currently known as ‘‘embedding.’’ Indeed, at oral argu-
ment appellants’ counsel stated that the military is ‘‘obligated
to accommodate the press because the press is what informs
the electorate as to what our government is doing in war.’’

B. Ripeness and Standing
We first consider appellees’ contention that appellants lack
standing to assert their ‘‘as applied’’ claims and that those
claims were not ripe. For the reasons set forth below, we
conclude that appellants do have standing and that the claims
are ripe.
Standing requires that plaintiffs allege ‘‘an injury in fact’’
that is ‘‘concrete and particularized and actual or imminent,
not conjectural or hypothetical.’’ Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (citations and internal
punctuation omitted). In applying that test, we assume the
validity of appellants’ allegation of injury, although having
crossed that threshold, we may ultimately determine it to be
invalid. With that assumption, we hold that appellants do
have standing to assert their as-applied claims. They asked
for immediate access to accompany U.S. troops in combat,
which they contend is their constitutional right, and that
access was not granted. Therefore, appellants ‘‘ha[ve] suf-
fered an ‘injury in fact’ that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical.’’
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.
167, 180 (2000). They have standing to challenge the Di-
rective as it was applied in this case.
 9

In order to test the ripeness and justiciability of the claims,
we again assume that they are otherwise valid. Ripeness
analysis tests whether a question has sufficiently matured to
be amenable to adjudication. The Supreme Court has ex-
plained that when considering whether an issue is ripe for
judicial review, a court must ‘‘evaluate both the fitness of the
issues for judicial decision and the hardship to the parties’’ of
refusing a decision. Texas v. United States, 523 U.S. 296, 301
(1998) (internal quotation marks and citation omitted). Fur-
ther, a claim is unripe if it depends on ‘‘contingent future
events.’’ Id. at 300.
Appellants’ claim is that credentialed press persons have an
immediate right, upon request, to accompany U.S. troops in
combat. So understood, the as-applied claims are ripe.
Flynt requested that Hustler reporters gain access to combat
operations, and that access was not immediately granted.
Instead, access of another sort was provided–that of covering
‘‘the [air] strikes, witness[ing] the humanitarian drops and
interview[ing]’’ soldiers. Flynt’s claim does not depend on
‘‘contingent future events.’’ He asked for immediate access,
which he contends is his constitutional right, and that access
was not granted. On these facts, the question is presented in
a concrete factual setting and is fit for judicial review.

C. Facial Challenge
With all of appellants’ claims properly before us, we now
turn to their validity. Because it is clear to us that appellants
have asserted no cognizable First Amendment claim, both the
as-applied and facial challenges fail.
The facial challenge is premised on the assertion that there
is a First Amendment right for legitimate press representa-
tives to travel with the military, and to be accommodated and
otherwise facilitated by the military in their reporting efforts
during combat, subject only to reasonable security and safety
restrictions. There is nothing we have found in the Constitu-
tion, American history, or our case law to support this claim.
To support the position that there is such a constitutional
right, appellants first point to cases that discuss the general
 10

purposes underlying the First Amendment. See New York
Times Co. v. United States, 403 U.S. 713, 717 (1971) (‘‘[t]he
press was protected so that it could bare the secrets of
government and inform the people.’’) (Black, J., concurring);
Mills v. Alabama, 384 U.S. 214, 218 (1966) (the First Amend-
ment supports the ‘‘free discussion of governmental affairs.’’).
These cases, however, say nothing about media access to the
U.S. combat units engaged in battle.
Appellants also cite cases that allow facial challenges to
statutes or regulations that vest public officials with unfet-
tered discretion to grant or deny licenses to engage in
expressive activity, such as City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750, 757 (1988), and Shuttlesworth v.
City of Birmingham, 394 U.S. 147, 150–51 (1969). This is
not, however, a ‘‘license’’ decision. This appeal challenges
regulations controlling access to government information and
activity, not governmental limitation of expression. The Su-
preme Court has noted the difference. See, e.g., Los Angeles
Police Dept. v. United Reporting Publ’g Co., 528 U.S. 32, 40
(1999) (distinguishing government limits on access to informa-
tion in its possession from a government restriction on dis-
seminating information one already possesses).
Likewise, this Court has held that ‘‘freedom of speech [and]
of the press do not create any per se right of access to
government TTT activities simply because such access might
lead to more thorough or better reporting.’’ JB Pictures,
Inc. v. Dep’t of Defense, 86 F.3d 236, 238 (D.C. Cir. 1996).
Appellants admit they face a ‘‘dearth of case law concerning
press access to battles.’’ From this unenviable position, they
ask us to look to Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555 (1980), for guidance.
In Richmond Newspapers, a plurality of the Supreme
Court held that a constitutional right of public access to
criminal trials existed based on a long history of such access
in the United States and in England at the time our organic
laws were created. Id. at 581. According to appellants,
Richmond Newspapers established that the First Amend-
ment may be interpreted to provide for a right of access to
 11

government operations, and that access is not limited to
criminal trials. They assert that we must apply a Richmond
Newspapers analysis to the facts of this case. We disagree.
In Center for National Security Studies v. Department of
Justice, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 2004 WL
46645 (Jan. 12, 2004), we held that there was no First
Amendment right for plaintiffs to receive the identities of
INS detainees and material witnesses who were detained in
the wake of the September 11 attacks. Indeed, we made it
clear that ‘‘[n]either the Supreme Court nor this Court has
applied the Richmond Newspapers test outside the context of
criminal judicial proceedings or the transcripts of such pro-
ceedings.’’ Id. at 934. For emphasis, we added that ‘‘neither
this Court nor the Supreme Court has ever indicated that it
would’’ do so. Id (emphasis in original). Instead, we noted
that in all areas other than criminal proceedings, the Su-
preme Court has applied the general rule of Houchins v.
KQED, 438 U.S. 1 (1978) (plurality opinion), not the exception
of Richmond Newspapers. Ctr. for Nat’l Sec. Studies, 331
F.3d at 935. Houchins held that the press have no First
Amendment right of access to prisons, and in doing so stated
that the First Amendment does not ‘‘mandate[ ] a right of
access to government information or sources of information
within the government’s control.’’ Houchins, 438 U.S. at 15.
To summarize, neither this Court nor the Supreme Court has
ever applied Richmond Newspapers outside the context of
criminal proceedings, and we will not do so today.
Appellants argue that we did, however, use the analysis
underlying the Richmond Newspaper decision in JB Pictures
Inc. v. Department of Defense, 86 F.3d 236, 240 (D.C. Cir.
1996). In that case, several media and veterans organizations
challenged a Department of Defense policy. That policy
shifted ceremonies for deceased service members arriving
from overseas from Dover Air Force base to locations closer
to the service members’ homes. It also gave the families of
deceased military personnel the authority to limit press ac-
cess to those ceremonies. Contrary to appellants’ assertion,
the extent of our Richmond Newspapers discussion in that
case is contained in one sentence: ‘‘[i]t is obvious that mili-
 12

tary bases do not share the tradition of openness on which
the Court relied in striking down restrictions on access to
criminal court proceedings in TTT Richmond Newspapers.’’
Id. Thus J.B. Pictures not only does not support wholesale
adoption of a Richmond Newspapers analysis in every case
involving requests for access to government activities or
information, it rejects such a rule.
Even if we were to apply a Richmond Newspapers test,
which again, we do not, it would not support appellants’ facial
challenge to the Directive. As an initial matter, the history of
press access to military units is not remotely as extensive as
public access to criminal trials. Without going into great
historic detail, it is sufficient that in Richmond Newspapers
the Supreme Court relied on the ‘‘unbroken, uncontradicted
history’’ of public access to criminal trials. Id. at 573. This
includes the time when ‘‘our organic laws were adopted.’’ Id.
at 569. Indeed, even since ‘‘the ancient town meeting form of
trial,’’ the ‘‘people retained a ‘right of visitation’ which en-
abled them to satisfy themselves that justice was in fact being
done.’’ Id. at 572 (internal citations omitted).
No comparable history exists to support a right of media
access to U.S. military units in combat. The very article
cited by appellants for the proposition that media have tradi-
tionally had broad access to soldiers in combat does not
support this position. See John E. Smith, From the Front
Lines to the Front Page: Media Access to War in the
Persian Gulf and Beyond, 26 Colum. J.L. & Soc. Probs. 291,
292–305 (1993). Beginning with the American Revolution,
war reporting was primarily in the form of private letters
from soldiers and official reports that were sent home and
published in newspapers. Id. at 293. Indeed, the rise of the
professional war correspondent did not begin until at least
the time of the Civil War. Id. In addition, it is not entirely
clear that in any of our early wars the media was actively
embedded into units, which is the right appellants seek. In
sum, even if we were to attempt a Richmond Newspapers
analysis and consider the historical foundations of a right of
media access to combat units, appellants’ claim would fail
miserably.
 13

Even if Richmond Newspapers applied in this context, and
even if there was a historical basis for media access to troops
in combat, the Directive would still not violate the First
Amendment. Richmond Newspapers expressly stated that
‘‘[j]ust as a government may impose reasonable time, place,
and manner restrictions’’ in granting access to public streets,
‘‘so may a trial judge TTT impose reasonable limitations on
access to a trial.’’ 448 U.S. at 581 n.18. These limitations
could be based on the need to maintain a ‘‘quiet and orderly
setting,’’ or ‘‘courtrooms’ TTT limited capacity.’’ Id. The
Directive appellants challenge is incredibly supportive of me-
dia access to the military with only a few limitations. The
Directive begins with the command that ‘‘[o]pen and indepen-
dent reporting shall be the principal means of coverage of
U.S. military operations.’’ DOD Directive 5122.5 ¶ E3.1.1. It
further orders military public affairs officers to ‘‘act as liai-
sons, but [ ] not [to] interfere with the reporting process.’’
Id. at ¶ E3.1.6. Additionally, ‘‘field commanders should be
instructed to permit journalists to ride on military vehicles
and aircraft when possible.’’ Id. at ¶ E3.1.7. The restrictions
contained in the Directive are few, including: special opera-
tions restrictions; limited restrictions on media communica-
tions owing to electromagnetic operational security concerns;
use of media pools when the sheer size of interested media is
unworkable, such as at the beginning of an operation; and
expulsion for members of the media who violate the ground
rules. Id. at ¶ ¶ E3.1.2.-E3.1.8. Appellants have offered no
reason to conclude that these restrictions are unreasonable.
Even if Richmond Newspapers did apply, appellants’ argu-
ment would fail.
The District Court, therefore, was more than correct when
it stated that declaring the Directive unconstitutional would
entail announcing an uncertain, yet ‘‘significant principle of
First Amendment protection in the context of a new applica-
tion of the facial challenge mechanism.’’ Flynt v. Rumsfeld,
245 F.Supp. 2d at 108. In no way did the District Court
abuse its discretion in refusing to grant declaratory relief.
 14

D. As-applied Challenges
We now turn to the as-applied challenges. As explained
above, the constitutional right appellants assert does not
exist, so the as-applied claim could only survive if this other-
wise constitutional Directive was applied to them in some
unconstitutional way. It was not. At no time has Flynt ever
claimed that he, or Hustler, was treated differently under the
Directive than any other media outlet. Nor has he claimed
that the Directive is some sort of a sham that was not
followed.
Even if there were some underlying constitutional right of
media access to U.S. troops in battle, the Directive, and its
application to appellants in this case, certainly would not have
violated it. When Flynt made his request, Clarke explained
that ‘‘the highly dangerous and unique nature of [special
operations] work makes it very difficult to embed media’’ with
ground troops, but also said that there had been ‘‘extensive’’
media access to other aspects of military operations. Specifi-
cally, ‘‘[s]cores of reporters and photographers have covered
the [air] strikes, witnessed humanitarian drops and inter-
viewed dozens of [soldiers].’’ Clarke then provided Flynt
with contact information for the Fifth Fleet Public Affairs
Officer so that Hustler could have similar access. The expla-
nation was clear and consistent with the Directive, which
states that ‘‘[s]pecial operations restrictions may limit access
in some cases.’’ Directive 5122.5 ¶ E3.1.5. Indeed, in con-
formity with the letter and spirit of the Directive, Clarke not
only explained why direct access to ground troops was not
currently possible, but she also immediately gave Flynt the
information necessary to receive the access that was avail-
able. It was Flynt who failed initially to contact the designat-
ed public affairs officer. Ultimately, Flynt’s reporter was
given broad access to troops and has filed several stories, at
least one of which shows he has accompanied troops on a
search for al Qaeda operatives.
At oral argument, appellants asserted that DOD waited too
long in making a final decision, and that they should have
been required to promptly tell him that ‘‘this is a special
 15

forces operation, and you can’t go.’’ According to appellants,
if this were the case, ‘‘at least there would be an answer and
[we would have been] denied.’’ This is, of course, precisely
what happened. Within 16 days of Flynt’s initial request,
DOD responded by informing him that only special operations
were underway. They also, however, advised him that access
would be expanding in the future and that substantial access
was already available. They provided him with the necessary
contact information to ensure that his Hustler reporter would
be there with other media representatives. All of this oc-
curred within 90 days of the September 11 attacks. In sum,
there is nothing in the record that shows the otherwise
constitutional Directive was applied to appellants in any
illegal manner.

III. Conclusion
Because we hold that there is no constitutionally based
right for the media to embed with U.S. military forces in
combat, and because we further hold that the Directive was
not applied to Flynt or Hustler magazine in any unconstitu-
tional manner, the District Court’s judgment is affirmed.