A federal judge on Friday allowed the Pentagon to move forward with terminating three employees of the Stars and Stripes military newspaper.
In a 24-page ruling, U.S. District Judge Trevor McFadden turned down a request by the newspaper’s publisher, editor-in-chief and Middle East reporter to halt their firings while a lawsuit challenging the terminations works its way through the court system.
McFadden found the government likely did not violate their First Amendment rights by firing them last month.
The plaintiffs — publisher Max Lederer, editor-in-chief Erik Slavin and reporter Lara Korte — were given separation notices in August and placed on administrative leave over allegations of insubordination. The move raised questions about the future of the Stars and Stripes, which is operated by the military and is partially funded by taxpayers, but has traditionally operated independently of military leadership or the White House.
For Slavin and Korte, the alleged insubordination cited in their termination notices was related to interviews they gave to CBS News for a piece on “CBS Sunday Morning” that aired in July. In the story, Korte said that she worked for Stars and Stripes, “not for the Pentagon, not for any administration, not for any policymaker.”
The firings took place shortly after the newspaper published a piece detailing flagging mental health concerns and food and water shortages aboard the USS Abraham Lincoln aircraft carrier, which had been deployed for nine months.
A day after that story ran, the lawsuit said, Pentagon officials ordered Lederer, the Stripes’ publisher, to issue notices of separation to Slavin and Korte. Lederer declined to present them and opted to resign, but he was fired before he could do so.
Parts of McFadden’s ruling analyzed whether Korte and Slavin spoke with CBS News in their capacity as Stars and Stripes employees. Prior Supreme Court cases have found that government employees’ right not to be fired for their speech hinges partially on whether they were speaking as private citizens or as part of their official job duties.
McFadden found Korte and Slavin’s speech was likely the latter.
“[At] bottom, on the current record, Plaintiffs’ real complaint seems to be that they were victims of a cruel bait-and-switch. They are being fired for giving pre-approved interviews on their paper’s behalf in which they largely toed the company line,” the judge wrote. “Whatever else such a scheme may violate, it does not clearly offend the First Amendment.”
The ruling came shortly after lawyers for the three fired Stars and Stripes employees squared off against Justice Department attorneys in federal court earlier Friday, arguing that the Pentagon had unlawfully terminated the journalists in violation of their protected free speech.
In federal court, attorney Taryn Wilgus Null told McFadden in the District of Columbia that her journalist clients were appearing as sources — and not as reporters — for the CBS piece and were speaking “on matters of public concern” outside of their official duties at Stars and Stripes.
“Government employees do not lose their First Amendment free speech rights,” she told the court, noting as well they “were not acting within their ordinary job duties” and had a choice about whether to be interviewed for CBS News.
Brett Covington, a Justice Department lawyer who argued for the Pentagon on Friday, told McFadden that all three journalists routinely did interviews as part of their normal duties, and noted that the CBS News interview had taken place at the Stars and Stripes headquarters with other employees visible in the background.
He also cited an email from Korte in which she wrote she would “rather eat glass” than allow the federal government to tell her what she could or couldn’t write.
He said that email offered context which shows she was concerned about “being able to perform her job duties.”
He also told the court that the publication of the story about the USS Abraham Lincoln was unrelated to the firings, and that the process for those started more than a month before the story ran.
“Our position is, it’s a red herring,” he said.
McFadden, prior to ruling, acknowledged that both sides appeared to have some case law on their side to support their arguments, and said the case struck him as requiring a very “fact-driven analysis” that could be different for each of the three journalists.
