Judge declines to block firing of Stars and Stripes journalists

WASHINGTON — A federal court judge on Friday allowed the Pentagon to move forward with the firing of three Stars and Stripes employees who are suing the government for wrongful termination.

U.S. District Judge Trevor McFadden denied a request from the paper’s editor in chief, publisher and a reporter to halt their firings while their lawsuit proceeds, ruling that their dismissals likely did not violate First Amendment rights.

Arguments in the case hinged on whether editor-in-chief Erik Slavin and Middle East reporter Lara Korte were speaking as private citizens or in their official capacities when they did an interview with CBS about the newspaper that aired in July.

In the interview, Slavin and Korte discussed the importance of maintaining the paper’s editorial independence. Slavin said censorship would cross a red line, and Korte asserted that she worked for Stars and Stripes, not the Pentagon.

McFadden ruled that the journalists spoke as part of their official duties and were therefore not entitled to free speech protections.

“In short, when government employees provide public commentary in their official capacity, their speech is government speech, and the First Amendment does not apply,” he wrote.

The Pentagon last month issued separation notices to Slavin, Korte and publisher Max D. Lederer Jr. that charged them with insubordination for participating in the interview and, in Lederer’s case, for refusing to fire Slavin and Korte because of it.

Lederer chose to retire rather than dismiss Slavin and Korte. His notice of separation also cited comments he made in an interview to Stars and Stripes that voiced concerns about the Pentagon’s modernization plan for the paper.

The three journalists said in a statement Friday that they were disappointed by the judge’s decision and considering next steps. They noted that the ruling was not a final decision in their case.

“We continue to believe that the Pentagon should not be able to fire journalists for speaking out against censorship and defending the editorial independence of Stars and Stripes,” they said.

The publication is owned and partly funded by the Defense Department, but federal regulations and department policy have for decades emphasized its editorial integrity.

The Pentagon has sought to exert control over Stars and Stripes this year by repealing the regulations and issuing guidance that stated content “must be consistent with good order and discipline,” a phrase used in military justice.

The paper’s ombudsman, a role charged by Congress with defending the paper’s independence, was fired in April.

In court proceedings Friday, Taryn Wilgus Null, one of the attorneys for the three fired journalists, argued that they had spoken to the news media as private citizens on a matter of public concern.

“Government employees do not lose free speech rights by becoming government employees,” she said. “They were not going out on behalf of Stars and Stripes to deliver a message to the press.”

Assistant U.S. Attorney Brett Covington agreed that the issue was of public concern but said Slavin and Korte spoke to CBS as Stars and Stripes personnel. He said they were introduced by their job titles and sat for the interview in their offices.

He added that Slavin had given so many prior interviews that they should be deemed part of his job duties and cited an email in which Korte told a CBS producer that she would “rather eat glass” than let the government tell her what to write.

Covington also rejected the journalists’ argument that they were fired, in part, in retaliation for the newspaper’s coverage of hardships faced by sailors and Marines during the extended deployment of the USS Abraham Lincoln.

Lederer said he was instructed to fire Slavin and Korte the day after Stars and Stripes published an article, written by Alison Bath, detailing food and water shortages, disrupted mail service and mental health struggles aboard the aircraft carrier.

Covington said the Pentagon began preparing separation notices for Slavin and Korte weeks before the Lincoln story ran. He called the allegation of a connection between the two a “red herring.”

McFadden agreed in his ruling, writing that Lederer had received Pentagon criticism about the CBS interview prior to the story’s publication. He, however, noted during the hearing that the timing was “bizarre” and said both sides had case law to support their arguments in the lawsuit.

The fired journalists said that their case is not primarily about them but whether service members can rely on a free and independent press and if the civilian and military journalists at Stars and Stripes can do their jobs without fear of retaliation.

Their attorneys argue that the firings will chill freedom of speech in the newsroom.

They pointed to a recent conversation between Korte and Navy Capt. William Urban, the recently installed military deputy to the publisher, in which Urban allegedly told her she should “essentially apologize” to the Pentagon if she wanted to keep her job.

“Capt. Urban stated that if Ms. Korte showed contrition, he could use her as a ‘teaching moment’ for the other staffers — to show that if you assert independence from Pentagon orders to modernize, you will be fired,” the lawyers wrote in a court document Thursday.

McFadden dismissed that argument, saying Urban is not behind the terminations and had indicated he opposed them. In an email to Korte, Urban wrote: “To be clear, I don’t have the authority to retain you. I will 100% go to war for you if you are willing to collaborate with me.”

“This purported smoking gun, on the current record, looks more like a helping hand,” McFadden wrote.

When asked for comment on how his email was used in the hearing, Urban expressed an opinion that McFadden’s interpretation was correct.

McFadden said that “perhaps discovery” will strengthen the journalists’ overall case.