The pen is mightier than the sword or why the media should exercise self-restraint in time of war.

On September 11, 2001, shortly after airplanes struck the Twin Towers, the media revealed the deployment of the U.S.S. Theodore Roosevelt, an aircraft carrier, to New York City. At a time when an identifiable enemy could not be located--when the enemy should have been presumed to be at large--the media disclosed the location of U.S. forces. Since then, some members of the media have complained that their right to report is being unnecessarily abrogated by Pentagon restrictions. For example, journalist Peter Arnett has said he "[doesn't] see why reporters cannot be in the B-52s that are starting to launch continuing air strikes." (1) Commenting on another journalist's observation that government authorities restricted broadcasts of Osama bin Laden's image as a precaution against inadvertently transmitting secret signals to other terrorists, Arnett has said "that controlling the message ... is an overwrought reaction by government authorities." (2) Add to those remarks the view of some that a media consortium should purchase a controlling interest in a reconnaissance satellite in order to ensure the media has access to space-based cameras so that satellite photographs may be available for the use of the media, free of the auspices of government. (3)

In the wake of the September 11th attacks, all Americans, but perhaps Floridians most of all, have several reasons for taking a keen interest in what the media broadcasts about ship locations, troop deployment, and other sensitive subjects. After all, Florida was a staging ground for the terrorists. For example, the investigation into the attacks revealed that many of the suicide terrorists lived in Florida where they took flying lessons and martial arts classes. (4) Other Floridians witnessed the President's reaction to the news of the attacks first-hand when he was in Sarasota visiting an elementary school. Individual Floridians may have become targets: The first anthrax-related death, though not conclusively linked to the September 11th attacks, occurred near West Palm Beach only weeks later. (5) Most significantly, perhaps, the U.S. Army's CENTCOM (Central Command), which maintains operational control of"Enduring Freedom," is based in Tampa at MacDill Air Force Base. (6) Against this backdrop of people and places, one must consider two cherished concepts: freedom of the press and a government open to scrutiny.

The implications of exercising control over the media in time of war are significant. The lifeblood of democracy, a form of government that derives its power from the consent of the governed, flows, in part, because of the existence of an informed citizenry. (7) Thus, in time of peace and time of war, in order to maintain the legitimacy of the government, citizens must know what actions are being prosecuted in their name. (8) However, during time of war, limits to this proposition must exist. If the survival of the Republic is at risk, the courts likely will assist the legislative and executive branches when they act to preserve the Republic--even if it means temporarily curtailing, by as limited a means as possible, certain freedoms so that the virtues of liberty can be fully enjoyed as soon as the threat is vanquished. As Americans, we prize our freedoms; this article's proposition recognizes and embraces those freedoms, while arguing that the common sense approach suggested by the Supreme Court, in dictum, in regard to the First Amendment in time of war should trump an unfettered media right of access. As a result, the media should exercise self-restraint and judgment when covering military operations. (9) Such self-restraint would strike a balance between competing interests and achieve a sensible policy of providing citizens with needed information while protecting American lives on the battlefield. Significantly, the media self-restraint proposed in this article, by its very nature, should not signal a general roll-back of civil liberties.

Origins of Conflict Between Media and Armed Forces

Throughout history, the relationship between the armed forces and the media has been marked by disagreement and competing objectives. (10) Sun Tzu, the ancient Chinese warrior and author, counseled commanders that the "formation and procedure used by the military should not be divulged beforehand." (11) One of the U.S. Army's eight principles of war is surprise. (12) In contrast, the purpose of news organizations is to disclose information. (13) Necessarily, the two ideals--secrecy and disclosure--collide when the armed forces and news organizations interact. (14)

Secrecy remains important even after a mission has been accomplished. Allowing the media to publish secret or sensitive information after the "surprise" has been sprung is no solution. The enemy may be able to gain an advantage with the "after-the-fact" information. For example, in World War II, a reporter, after learning Allied Intelligence had broken the Japanese code, published the names of Japanese warships used in the Battle of Midway, which revealed the Allies' ability to crack the code. (15) Fortunately, the Japanese never capitalized on the publication; nevertheless, the magnitude of the potential loss resulting from a Japanese realization that their naval code had been broken illustrates the need for continuing secrecy in particular circumstances.

In order to prevent, or at least control, the disclosure of information, the armed forces have used two primary methods in attempting to restrict the media in time of war. The first method of control is censorship. Military censors delete information, regardless of source, that is deemed unfit for publication. Similarly, the armed forces may review information before publication and ask the media to refrain from publishing what has been deemed to be sensitive information. The second method of control in time of war is more basic--restricting media access to sources of information. Instead of censoring sensitive information, the armed forces prevent the media from acquiring sensitive information. Press pools, restricting physical access from particular areas, misinformation, and the use of preferred correspondents all fall into the category of restricting media access to sensitive information.

Wartime Censorship and Restricted Access

* Censorship

As war correspondent Phillip Knightley observed, in the 20th century the armed forces applied "censorship at the source" within the U.S. (16) The goal of the military censors was to prevent the media from learning information that the armed forces did not want released. (17) Military censors determined that the information could be published if the war effort would benefit from having the information made public. (18) Outside the U.S., American armed forces exercised a different method of control. Correspondents were required to be accredited or were excluded from theaters of war. (19) A condition of accreditation required the correspondent to submit his or her stories to a military censor. (20)

* Restricted Access

Foreign armed forces developed the practice of restricting battlefield access. For example, press pools--a group of reporters who collect information to be shared with other news organizations--originated in the Russo-Japanese war of 1904-05. (21) The Japanese High Command restricted the Western media to Tokyo during several months of fighting. (22) When members of the media were finally allowed to leave Tokyo, they were under military escort and kept at a distance from the front. (23)

American armed forces first began using press pools in the Panama invasion of 1989. (24) (Major General Winant Sidle, a military spokesman during the Vietnam War, had introduced the press pool concept to the relationship between the American military and media after the invasion of Grenada. (25)) In the absence of a press pool convention, the armed forces restrict battlefield access by simply ordering the media to avoid certain areas under pain of arrest or deportation. (26)

Another way armed forces restrict media access is through the use of misinformation (i.e., deliberately giving the media misleading information in order to prevent the enemy, and sometimes the public at home, from learning information). For example, the U.S. government told American correspondents in World War II that only two battleships were lost after the Pearl Harbor raid. (27) In order to minimize panic, the American public was not made aware of the actual number of battleships lost at Pearl Harbor. In reality, eight battleships had been sunk or damaged. (28)

Finally, the use of preferred reporters is, like the use of misinformation, a long-standing military tactic used to control the media. Commanders have offered virtually unlimited access to a few reporters who reciprocate by publishing information according to the specifications of that commander. (29) Thus, the armed forces increase the likelihood that favorable information may be published or that sensitive information may be omitted.

Law Regarding Censorship and Right of Access

* Censorship

Censorship is, by definition, a prior restraint. (30) Under the prior restraint doctrine, the government may not forbid the publication or broadcast of information held by the media except in the most urgent situations involving the national security of the U.S. (31)

The U.S. Supreme Court noted the existence of exceptions to the prior restraint doctrine in Near v. Minnesota, 283 U.S. 697 (1931), when the Court held a statute prohibiting the publication of scandalous newspapers to be an unconstitutional prior restraint. In that decision, the Court, in dictum, observed that an exception to the prohibition against prior restraints existed for sensitive information that could affect national security. (32) Specifically, the Court reasoned that "no one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." (33)

Commenting on the national security exception, the Court relied upon language from the majority opinion of Schenck v. United States, 249 U.S. 47 (1919): "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right." (34)

The Court addressed the national security exception in New York Times Co. v. United States, 403 U.S. 713 (1971), a per curiam decision. The U.S. government had sought an injunction prohibiting publication of a stolen copy of a classified 7000-page political history of the Vietnam War. (35) A majority of justices held that the newspaper could not be enjoined from publishing the document, in part because publication had already begun and the damage already done. (36) Nevertheless, the significance of Near was noted. For example, Justice Brennan acknowledged the existence of the national security exception of Near but qualified the exception by postulating that the government must prove that publication of the material at issue would "inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea .... In no event may mere conclusions be sufficient...." (37) Thus, the Near and New York Times decisions illustrate the existence of a limited exception that allows the government to restrict disclosure of information affecting a specific national security interest. These decisions also illustrate the high, though ambiguous, standard used to determine whether the media may be enjoined from publishing information.

The national security exception, in the context of nuclear weapons, was at issue in United States v. The Progressive, 467 F. Supp. 990 (W.D. Wis. 1979), appeal dismissed, 610 F.2d 819 (7th Cir. 1979). The government sought to enjoin a magazine from publishing an article detailing the schematic design of a nuclear weapon. (38) The Court granted an injunction, although much of the information was either declassified or in the public domain, that remained in force for seven months until the government dissolved the injunction after another publication printed the information. (39)

* Media Right of Access

The origins of a right of access for media can be found in the writings of the framers of the Constitution. (40) FFor example, James Madison believed that "[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both." (41) Indeed, though "the framers knew a partisan and scurrilous press, not a fair one," (42) they saw the media as a fourth branch of government. For example, at the time the Constitution was written, Thomas Jefferson believed the First Amendment was designed to protect the free press by placing a "legal check ... into the hands of the judiciary." (43) Jefferson's proteg6 Madison, however, saw First Amendment freedoms as a tradeoff, noting that while the press is "chequered ... with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression." (44)

The Supreme Court recognized the ideas of Madison and Jefferson regarding the importance of a free press in its decision in Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Court decided the question of whether a reporter has the same obligation as an ordinary citizen to respond to grand jury subpoenas and answer questions relevant to an investigation into the commission of a crime. (45) In holding that a reporter does have such an obligation, the Court made clear that "[w]e do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." (46) Significantly, the Court limited this language by noting that the "First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." (47) When coupled with the Court's decision in Greer v. Spock, 424 U.S. 828, 838 (1976), in which the Court expressly ruled that a military base is not a public forum, it is clear that, despite the generally broad protections of the First Amendment, the media can be prohibited from obtaining access to sensitive information.

Threshold Constitutional Doctrines in Right-of-Access Case

Before a media right-of-access-to-a-battlefield issue will be addressed by a federal court, at least three constitutional doctrines must be overcome: separation of powers; political question; and mootness. Each of these doctrines poses a threshold obstacle that federal courts must hurdle to reach the merits of battlefield-access claims. Ultimately, as demonstrated below, a media access claim will probably founder on the separation of powers and political question issues.

* Separation of Powers Doctrine

The federal government is divided into three branches of government: executive, judicial, and legislative. (48) Under the separation of powers doctrine, one branch of the government cannot encroach on the domain of, or exercise the powers of, another branch. (49) The Constitution grants exclusive authority to raise and support the armed forces to Congress. (50) Interpreting this grant of power, the Supreme Court has noted that Congress's power in raising and supporting the armed forces and making all laws necessary for that purpose is "broad and sweeping." (51) Similarly, the Constitution grants exclusive command of the armed forces to the executive branch, designating the President as commander-in-chief. (52) Specific judicial power over military matters is not delineated anywhere in the Constitution. The role of the federal courts is limited to interpretation of the Constitution. (53) Thus, judicial power over the armed forces arises only in an indirect manner.

As a result of the judicial branch's secondary role regarding the armed forces, a policy of extraordinary deference to the armed forces has emerged in the case law. For example, in Goldman v. Weinberger, 475 U.S. 503, 507 (1986), the Supreme Court noted that it "must give great deference to the professional judgment of military authorities" in ruling that the First Amendment would not support a Jewish officer's challenge to a U.S. Air Force regulation that prohibited wearing a yarmulke. In Rostker v. Goldberg, 453 U.S. 57 (1981), the Court unequivocally recognized the secondary status it possessed with respect to the armed forces. "[Judicial] deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." (54) Thus, in a matter involving the wartime judgment of a military commander, it seems more likely than not that the Court will defer to the armed forces, even in matters involving the First Amendment, in order to avoid encroaching on legislative or executive branch territory.

* Political Question Doctrine

The Supreme Court in Baker v. Carr, 369 U.S. 186 (1962), established a framework for determining when an issue could not be resolved judicially because of its status as a political question. (A political question is a matter of dispute that can be handled more appropriately by another branch of government. (55) Such a question is not a justiciable matter for the courts. (56)) Subsequently, the Court reduced the Baker standard to a three-prong Test. (57)

1) Does the issue involve resolution of questions committed ... to a coordinate branch?

2) Would resolution ... demand that a court move beyond areas of judicial expertise?

3) Do prudential considerations counsel against judicial intervention? (58)

Applying the test demonstrates the difficulty a federal court would have in deciding the question of a media right of access to a battlefield on the merits.

Under the first prong, the textual commitment of military matters to the legislative and executive branches (59) should remove the issue from proper judicial consideration.

Under the second prong, the Second Circuit's opinion in Holtzman v. Schlesinger, 484 F.2d 1307 (1973), weighs against a finding that the right of access issue is within the judicial branch's area of expertise. The court noted that whether a particular military action was within the province of the decision-making powers of the Commander-in-Chief was exactly the kind of factual question "involving military and diplomatic expertise not vested in the judiciary, which make the issue political and thus beyond the competence of ... this court to determine." (60) However, in order for Holtzman to apply, a court would have to find that exclusion of the media from a battlefield was a military action. The Southern District of New York did not consider a media challenge to Pentagon press regulations during the Persian Gulf War to require the court to move beyond the area of its expertise because "[t]he historic competence of the federal judiciary to address questions of First Amendment freedoms ... is clear." (61) Thus, there are strong arguments on both sides of the second prong.

The third prong, prudential considerations, deals with "mutual respect among the three branches of government," the avoidance of potentially embarrassing "multifarious pronouncements by various departments' on the same issue, and an unusual need for "unquestioning adherence" to a political decision already made. (62) Prudential considerations are probably not implicated in this hypothetical case; presumably, the executive and legislative branches would both support a commander's decision to restrict media access, as such restrictions, at least today, would be politically popular and, in any case, should assist in achieving mission success. As such, multifarious pronouncements seem unlikely. Finally, a decision to restrict media access, though potentially politically popular, does not seem to be a political decision, so there would be no need for unquestioning adherence. In summary, despite the incongruous interplay between the third prong and the doctrine as a whole, the political question doctrine should apply, as it is unnecessary to show all three prongs have been satisfied.

* Mootness Doctrine

A claim is considered moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. (63) A court will not decide the merits of a moot claim. (64) The mootness doctrine is implicated in battlefield access claims because, since Vietnam, every conflict involving American armed forces has ended before a claim could reach trial. Thus, by the time the claim is heard, the issue--lack of access to a battlefield--no longer exists because no battlefield exists. However, mootness can be overcome if the issue is "capable of repetition, yet is evading review." (65)

In order for the mootness doctrine to be overcome, a two-prong test must be satisfied:

1) The contested action must have been too brief to have been completely litigated prior to its conclusion.

2) A reasonable expectation must exist that the party bringing the action could be subject to the same injury again. (66)

Courts have analyzed battlefield access claims under the mootness doctrine in Nation Magazine v. United States Dept. of Defense, 762 F. Supp. 1558, 1568 (S.D.N.Y. 1991), and Flynt v. Weinberger, 588 F. Supp. 57 (D.D.C. 1984), vacated, 762 F.2d 134 (D.C. Cir. 1985).

In Nation, the mootness doctrine did not bar the court from hearing the merits. Under the first prong, the court found that the war was over too quickly to allow the media access claim to be heard while the restrictions were in effect. "Even with efforts by all parties, the judicial process often will not be able to resolve legal controversies ... before hostilities have ceased." (67) In analyzing the second prong of the mootness exception, the court found it likely that the plaintiff media organizations would be restricted similarly in future conflicts involving the U.S. armed forces. (68) The court considered the possibility that future restrictions would be less restrictive such that the plaintiffs would not be subject to the same injury but concluded that such possibility should not bar the claim "where there is no assurance as to when, if, and how the challenged practice will in fact be revised." (69) Thus, the court found that the claim was not moot in terms of justiciability. (70) However, the court ultimately held that the claims were moot in terms of the relief requested. (71) Stating that an injunction "is not appropriate for past injuries" the court held all claims requesting injunctive relief were moot. (72)

In contrast to the Nation court, the Flynt court held that the mootness doctrine barred the media plaintiff's claim from being decided on the merits. (73) In Flynt, publisher Larry Flynt sued Defense Secretary Caspar Weinberger, alleging that the armed forces's decision to exclude the media from the island of Grenada during the Grenada invasion violated the First Amendment. (74) The court found that the second prong of the mootness exception was not satisfied because there was no "demonstrated probability" that the circumstances would recur. (75)

On appeal, the District of Columbia Circuit upheld the trial court's finding of mootness but vacated the decision because the trial judge had opined on the merits of the case without making any findings of fact. (76) (The trial judge had declared that even if a live controversy existed, the court would decline to enjoin the U.S. from enforcing the media ban because an injunction would "limit the range of options available to commanders in the field, possibly jeopardizing the success of military operations and the lives of military personnel and thereby gravely damaging the national interest.") (77)

As between Flynt and Nation, the better-reasoned decision is Nation. The Nation court recognized that, although identical restrictions may not send the same media plaintiffs to court in the future, some press restrictions will hinder the same media plaintiffs. Thus, the Nation court avoided the simplistic application of the mootness test posited by the Flynt court, which read the second prong of the mootness exception to require an identical recurrence of facts in the future. (78) Such a literal reading makes the mootness exception absolute because no claim will recur in absolutely identical circumstances, which reading, if taken to its logical conclusion, would mean everything becomes moot. As such, in the hypothetical case, the mootness doctrine probably would not bar the claim.

In summary, strong arguments, supported by some authority, exist on both sides of at least two of the three justiciability issues. Ultimately, a court will probably not reach the merits of a battlefield access claim because the separation of powers and political question doctrines can not be overcome. However, even if a battlefield access claim can overcome the threshold constitutional issues, it faces a stiff test under Greer and the other decisions that limit Branzburg.

Media Access During Persian Gulf War

Having explained, generally, the theoretical underpinnings of media access and the restrictions thereon, we now turn to the battlefield application that set the stage for media access in the wake of September 11th: the Persian Gulf War. In the Gulf War, General Norman Schwarzkopf's media policy was based on his experience in Vietnam, especially what he perceived to be a media that harmed U.S. interests. (79) However, Schwarzkopf also believed that an outright ban on the media in the Persian Gulf would be a mistake reminiscent of the Pentagon's media policy during the invasion of Grenada. (80) Schwarzkopf's fundamental belief about the media was "that our own newspaper and TV reports had become Iraq's best source of military intelligence" (81) (emphasis added). (Ultimately, Schwarzkopf was proved correct in his belief that news reports were used by the Iraqis for intelligence purposes.) (82) At one point during the war, Schwartzkopf exclaimed, "This stinks! Newsweek just printed our entire battle plan." (83)

Despite Schwarzkopf's skeptical view of the wartime role of the news media, he intervened on behalf of the Western media so that journalists might have access to the theater of operations. For example, in August 1990 the Saudis had decided to ban all journalists from their country, the staging ground for the liberation of Kuwait. (84) The U.S. Central Command, headed by Schwarzkopf, persuaded the Saudis not to implement the journalist ban. (85) Similarly, on the night of February 23-24, 1991, Secretary of Defense Dick Cheney announced a 48hour news blackout to coincide with the commencement of the ground war against the Iraqis. (86) Schwarzkopf opposed the length of the blackout and gave a press briefing five hours after the ground war began. (87)

Outside of the intercessions by Schwarzkopf, media access was strictly limited by the pool system. (88) A Department of Defense publication, the Desert Storm Ground Rules for Media, provided a list of rules by which journalists had to abide. The rules "banned publication or broadcast of specific information the department wanted to keep secret, including numbers of troops, aircraft, weapons, equipment and supplies; future plans and operations; locations of forces; and tactics." (89) In addition, all combat reporting would be done in pools that were subject to security review prior to release; no reporters would be allowed free movement within combat zones. (90)

Some elements of the media tried to circumvent the ground rules by heading into the desert in search of a story. (91) A CBS News reporter, Bob Simon, and his news crew were captured by Iraqis. (92) Ironically, CBS requested military force to free Simon and his crew, which unnecessarily placed American forces at risk, even though the journalists' plight was caused by their withdrawal from the pool system. (93)

Conclusion

Journalistic zeal, ordinarily a desired quality of the press, in time of war can be a flaw, which can have far-reaching, and dire, consequences. During the Gulf War, some journalists disclosed sensitive information; other journalists unnecessarily put U.S. forces in harm's way when their overzealous pursuit of a story led to their capture by Iraqi forces. Given these incidents from a previous conflict, and the attitudes of some journalists in the aftermath of September 11th, the need for a sensible media policy based upon the media's exercise of self-restraint becomes clear.

The survey of the case law suggests the conclusion that the right of the media to information from the battlefield, if any right even exists, is subordinate to the right of the American people to have their armed forces conduct operations without journalistic disclosure of sensitive information. While the U.S. wars against terrorism, restricting media access to sensitive information is necessary to protect American lives and is supported historically and jurisprudentially. In order to ensure the existence of the First Amendment for future generations of Americans, a temporary and limited restraint on media access is necessary. Media decision makers--from reporter to publisher--must use common sense and judgment when covering matters military; just because one can publish something does not mean one should. Even the exercise of this broadest of rights--freedom of the press--like freedom of speech is tempered by "the circumstances in which it is done." (94)

(1) Morning Edition: War Coverage (NPR Broadcast, Nov. 6, 2001) (transcript available from www.npr.org).

(2) Id.

(3) Morning Edition: Spy Satellite (NPR Broadcast, Jan. 25, 2002) (transcript available from www.npr.org).

(4) Brad Smith, Why Florida? (Sep. 23, 2001), www.tampatrib.com/News/ MGARWPVCYRC.html.

(5) Associated Press, Charlotte, North Carolina (Nov. 8, 2001), www.msnbc.com/ local/rtnc/mll3214.asp.

(6) Deborah Sharp (Dec. 15, 2001), www.usatoday.com/news/attack/2001/ 12/15/tampa-usta.htm.

(7) See generally Kevin P. Kenealey, The Persian Gulf War and the Press: Is There a Constitutional Right of Access to Military Operations?, 87 NW. U. L. REV. 287,318-21 (Fall 1992).

(8) Id.

(9) At least one other commentator has advocated a similar policy based upon other grounds. See generally Steven S. Neff, The United States Military vs. The Media: Constitutional Friction, 16 MERCER L. REV. 977, 1007-10 (Winter 1995).

(10) See id. at 987.

(11) SUN TZU, THE ART OF WAR 55 (T. Cleary trans. 1988) quoted in Neff, supra note 9.

(12) See U.S. ARMY FIELD MANUAL 100-5. See also Neff, supra note 9, at 987.

(13) See Neff, Supra note 9, at 987.

(14) Michael D. Steger, Slicing the Gordian Knot: A Proposal to Reform Military Regulation of Media Coverage of Combat Operations, 28 U.S.F.L. REV. 957, 957 (Summer 1994).

(15) Matthew J. Jacobs, Assessing the Constitutionality of Press Restrictions in the Persian Gulf War, 44 STAN. L. REV. 675, 682 (Feb. 1992) (citation omitted).

(16) PHILLIP KNIGHTLEY, THE FIRST CASUALTY: FROM CRIMEA TO VIETNAM THE WAR CORRESPONDENT AS HERO, PROPAGANDIST AND MYTH-MAKER 275 (1975).

(17) Id.

(18) Id.

(19) Id.

(20) Id.

(21) Peter Schmeisser, Shooting Pool: How the Press Lost the War, THE NEW REPUBLIC, Mar. 18, 1991, at 21.

(22) Id.

(23) Id.

(24) Kenealey, supra note 7, at 287 n.3 (citation omitted).

(25) Paul G. Cassell, Restrictions of Press Coverage of Military Operations: The Right of Access, Grenada, and "Off-the-Record Wars," 73 GEO. L.J. 931,945 (Feb. 1985) (endnote omitted).

(26) Kenealey, supra note 7, at 291 (endnote omitted).

(27) Cassell, supra note 25, at 938 (endnote omitted).

(28) Id. (endnote omitted).

(29) GEOFFREY PERRET, OLD SOLDIERS NEVER DIE 528-29 (1996).

(30) Near v. Minnesota, 283 U.S. 697, 716-18 (1931).

(31) Id. at 716.

(32) Id.

(33) Id. (footnote omitted).

(34) Schenk, 249 U.S. at 52.

(35) New York Times, 403 U.S. at 750-52.

(36) See, e.g., id. at 733 (White, J., concurring).

(37) Id. at 726-27.

(38) The Progressive, 467 F. Supp. at 993.

(39) Jacobs, supra note 15, at 702 (citation omitted).

(40) Cassell, supra note 25, at 952.

(41) Letter from James Madison to W.T. Barry (Aug. 4, 1822) in 9 WRITINGS OF JAMES MADISON (G. Hunt ed. 1910), quoted in Cassell, supra note 25, at 952.

(42) LUCAS A. POWE, JR., THE FOURTH ESTATE AND THE CONSTITUTION 278 (1991).

(43) Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), quoted in Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927, 933 (May 1992).

(44) Near, 283 U.S. at 717-18 (citation omitted).

(45) Branzburg, 408 U.S. at 682.

(46) Id. at 681.

(47) Id. at 684.

(48) U.S. CONST. arts. I-III.

(49) BLACK'S LAW DICTIONARY 1369-70 (7th ed. 1999).

(50) U.S. CONST. art. I, [section] 8.

(51) United States v. O'Brien, 391 U.S. 367, 377 (1968) (citations omitted).

(52) U.S. CONST. art. II, [section 2.

(53) U.S. CONST. art. III.

(54) Rostker, 453 U.S. at 70.

(55) Baker, 369 U.S. at 209-11.

(56) Id.

(57) Goldwater v. Carter, 444 U.S. 996 (1979).

(58) Id. at 998.

(59) U.S. CONST. art. I, [section 8; U.S. CONST. art II, [section 2.

(60) Holtzman, 484 F.2d at 1310.

(61) Nation Magazine v. United States Dept. of Defense, 762 F. Supp.1558, 1567 (S.D.N.Y. 1991).

(62) Goldwater, 444 U.S. at 1000 (citation omitted).

(63) Murphy v. Hunt, 455 U.S. 478, 481 (1982) (citation omitted).

(64) See id. at 481-82.

(65) Southern Pacific Terminal v. ICC, 219 U.S. 498, 515 (1911).

(66) Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (citation omitted).

(67) Id. at 1569 (citation omitted).

(68) Id.

(69) Id.

(70) Id.

(71) Id.

(72) Id. at 1569-70.

(73) Flynt v. Weinberger, 762 F.2d 134, 135-36 (D.C. Cir. 1985) (per curiam).

(74) Id. at 134-35.

(75) Flynt, 588 F. Supp. at 59.

(76) Nation, 762 F.2d at 135-36.

(77) Flynt, 588 F. Supp. at 60.

(78) Id. at 58. More recently, the District of Columbia Circuit in JB Pictures, Inc. v. Dept. of Defense, 86 F. 3d 236 (D.C. Cir. 1996), which involved a media plaintiff and others that sought a right of access to Dover Air Force base to broadcast pictures of the remains of U.S. soldiers returning from the Persian Gulf War, held the government's mootness defense could be overcome because "the press ... continue[s] to be excluded from viewing the return of ... deceased soldiers ... [and] [t]he ongoing policy ... still affects news organizations...." JB Pictures represents a different treatment of the mootness issue because that issue was first raised on appeal and the restrictions sub judice were continuing. As such, it appears the D.C. Circuit really only examined whether the same parties would be affected by the continuing restrictions.

(79) ROGER COHEN AND CLAUDIO GATTI, IN THE EYE OF THE STORM: THE LIFE OF GENERAL H. NORMAN SCHWARZKOPF 266-68 (1991).

(80) H. NORMAN SCHWARZKOPF, IT DOESN'T TAKE A HERO 343 (1992).

(81) Id. at 381.

(82) Brian William DelVecchio, Press Access to American Military Operations and the First Amendment: The Constitutionality of Imposing Restrictions, 31 TULSA L.J. 227,227 n.1 (Fall 1995) (citation omitted).

(83) SCHWARZKOPF, supra note 80, at 440.

(84) Id. at 344.

(85) Id.

(86) COHEN AND GATTI, supra note 79, at 268.

(87) Id.

(88) Id. at 269.

(89) BOB WOODWARD, THE COMMANDERS 368 (1991).

(90) Id.

(91) Jacobs, supra note 15, at 691 (endnote omitted).

(92) Id. (endnote omitted).

(93) Id. at 691, 722 n.295 (citation omitted).

(94) Schenk, 249 U.S. at 52 (citation omitted).

Carlos A. Kelly is an attorney practicing with the law firm of Henderson, Franklin, Starnes & Holt, P.A., Ft. Myers. He earned his bachelor of arts degree from Florida State University in 1993 and his Doctor of Law degree from Emory University School of Law in 1997. Mr. Kelly's practice involves real estate and construction litigation, creditor's rights, and other disputes of a commercial nature. The author thanks Jane L. Kelly, Richard G. Lewis II, Jeffrey D. Kottkamp, Janet B. Teebagy, and Jeanne Culek for their assistance with this article.