University of Colorado at Denver

REPORTING IN THE NON-FREE PRESS

(THE CENSORSHIP PROCEDURES IMPOSED BY
THE DEPARTMENT OF DEFENSE DURING
THE PERSIAN GULF WAR AND
THE CONSTITUTIONALITY BEHIND THEM)*

Troy S. Knapp

Fundamentals of Mass Communications

1000-1200 T/R
Dr. Cheryl Pawlowski
July 1, 1993

* The terms "press" and "media" are used interchangeably throughout this paper. "Press
restrictions" include restrictions on all form of media coverage, including television, radio, wire
service, photography, and print.
 During the Persian Gulf War, the Pentagon imposed the tightest re-

strictions on battlefield press coverage in American military history. They 1

did this through two techniques; primarily, through the use of pre-

publication review by subjecting all news gathered to a security review

before it could be published, and secondarily by restricting media access to

the battlefield through the use of press pools. This censorship unarguably
2

made the Persian Gulf war the most undercovered conflict in American

military history. Despite the claim of the unconstitutionality of these press

3

restrictions, they are not patently unreasonable considering both the case

law behind them and the virtual revolution in warfare and communications

technology in the past few years. Therefore, this paper will assert that the
4

press restrictions placed upon the media during the Persian Gulf war did

not violate the First Amendment to the Constitution of the United States of

America.

The First Amendment states:

Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press, or of the right of the people peaceable to as-
semble and to petition the government for a redress of their
grievances. 5

The founding fathers deemed the freedom of the press so important they

guaranteed its freedom in the First Amendment. However, implied in this

1 Thomas B. Rosenstiel, Gulf War No Model for Coverage, Media Tell Pentagon,
Los Angles Times, July 1, 1991
2 Michelle D. Boydston, Press Censorship and Access Restrictions During the
Persian Gulf War: A First Amendment Analysis, Loyola of Los Angles Law Review, vol.
25, no. 3 (Loyola Press, 1992) pg. 1073
3 Ibid. p. 1074.
4 Matthew J. Jacobs, Assessing the Constitutionality of Press Restrictions in the
Persian Gulf War, Stanford Law Review, vol 44, no. 3 (Stanford Press, Stanford Ca.,
1992) p. 675.
5 United States Constitution's First Amendment, written Sep, 25 1789, ratified
1791, (italics added)
guarantee is the limited right of media personnel to access information.

This implication was taken to its extreme during the Persian Gulf War when

press access was limited through pre-publication review and the use of

reporting pools.

The pre-publication review required all news reports to be screened

by military censors prior to their release. 6

This action angered the press

because it interfered with their ability to disseminate their stories once they

were attained. 7
The Pentagon, however, insisted that the screening of all
news stories was necessary to ensure the operational security of American

military forces. 8
While the Department of Defense guidelines expressly

state that news stories will not be reviewed for their "potential to express

criticism or cause embarrassment" many journalists were concerned about

9

the possibility of governmental abuse. 10

The primary critics of pre-

publication review claim that the security review constitutes prior restraint

and is therefore unconstitutional. Two things need to be said about the

prior restraint exhibited during the Gulf War; primarily, in some narrowly

defined instances it has been found to be constitutional, and secondarily,

the United States media has demonstrated in the past that it can not be

self policing in matters dealing with national security.

In 1931 the United States Supreme Court issued an opinion on the

constitutionality of prior restraints relating to military related information in

6 Karl T. Olson, The Constitutionality of Department of Defense Press

Restrictions on Wartime Corespondents Covering the Gulf War, Drake Law Review,
vol. 41, no. 3 (Drake University Law School Press, 1992) p. 553
7 Ibid.
8 Ibid.
9 For a complete list of Department of Defense Guidelines for News Media see
Appendix A.
10 Olsen, p.534.
the case of Near vs. Minnesota ex rel. Olsen. 11
In dicta, the Court created a

striking exception to the general rule that prior restraints are un-

constitutional:

[T]he protection even as to previous restraint is not absolutely un-

limited. But the limitation has been recognized only in exceptional
cases. 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 re-
gard them as protected by any constitutional right. [No one would
question but that a government might prevent actual obstruction to
its recruiting service or the publication of the sailing dates and
transport or the number an location of troops.] 12

Supreme Court Justice Brennen backed this up in the land mark case of

New York Times Co. vs. United States, involving the now famous pentagon

papers when, in his concurring opinion, he stated that "the First

Amendment bans prior restraints and this ban can only be overridden in a

time of war." Justice Stewart agreed saying that "[prior restraints would be
13

allowed where the information could] surly result in direct, immediate and

irreparable danger to our nation or its people." 14

Throughout the majority of American military history legitimate press

censorship has been almost non-existent. This is due primarily to the lack
15

of speedy military and civilian communications capabilities. 16

Quite
11 Boydston, p. 1089. This case revolves around a Minnesota statute that
mandated "Any person who, as an individual, or as a member or employee of a firm,
or association or organization, or as an officer, director, member or employee of a
corporation, shall be engaged in the business of regularly or customarily producing,
publishing or circulation, having in possession, selling, or giving away (a) an
obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a
malicious, scandalous and defamatory newspaper, magazine or other periodical, is
guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as
hereinafter provided."
12 Boydston, p. 1090.
13 Ibid.
14 Olson, p. 695.
15 Michael Linefield, Freedom Under Fire: U.S. Civil Liberties in Times of War,
(South End Press, Boston MA., 1990) p. 85.
16 Olson, p. 707.
expectedly, as the capacity of communication has grown so has the need

for effective pre-publication review. The critics of this claim that the

military should institute a system of voluntary censorship and create

specific guidelines for the media to follow, and if any reporter were to break

the voluntary censorship, or specific guidelines, they could have their

accreditation striped. 17
After all, the press is very careful and would not

knowingly publish information harmful to legitimate United States causes. 18

The danger here lies in what the reporters and editors don't know. In the
field of military intelligence many seemingly insignificant things carry

vitally important information. 19

While the press has shown considerable

carefulness in the past, they can be unaware of the underlying importance

of the information they are reporting. 20

For example, during World War II, a

Chicago tribune corespondent reported the names of Japanese warships

used at Midway. 21
In doing this he had revealed to the Japanese that the

Allies had broken the Japanese naval code. 22

While this breach of security

proved inconsequential, the potential for horrendous damage is quite

evident. A more recent example is the photograph shown in appendix D.

23 24

This photograph was taken by a French photographer 25

not under the

auspices of the United States Department of Defense Guidelines for News

17 Boydston, p.1103.
18 This is the crux of a statement made by Dr. Cheryl Pawlowski on June 24,
1993 at the University of Colorado at Denver, during a visual presentation given on
this topic.
19 Colonel Robert Debs Heinl, Jr., Handbook for Marine Non-Commissioned
Officers, (Naval Institute Press, Annapolis M.D., 1988) p. 163.
20 Jacobs, p. 682.
21 Ibid.
22 Ibid, p.683.
23 Ibid.
24 Dominique Aubert, In the Eye of Desert Storm, Photographs of the Gulf War,
(Harry N. Abrams, Inc, Publishers, New York, 1991) p. 60-61.
25 Ibid.
Media. 26
In it we see a patriot missile flying over Tel Aviv, Israel on its way

to intercept an Iraqi Scud. 27

The inherent danger of publishing, through

visual images, the location of an Allied Patriot missile battery is self

evident.

The need for pre-publication review becomes exponentially greater

when it deals in the realm of television. 28

Even the most careless news-

paper corespondent will have their work scanned by an editor that has the

ability to cut damaging information, while the words of an uncensored

television reporter goes straight form his mouth to Saddam Hussain's ears. 29

In this age of satellite communications information can be broadcast and

received in seconds, and information broadcast to the United States can

just as easily be intercepted by Baghdad. 30

Pre-publication review is the

only sure-fire way of ensuring that the enemy does not receive information

it could use against United States Forces in war. 31

The second form of official censorship used in the Gulf War was that

of press pools. 32
The military provided battlefield access to accredited

reporters on the stipulation that they follow Department of Defense

guidelines. 33
The primary limiting feature of these guidelines was the use of

media pools, in which the participants agreed to pool and share there

stories and photographs with the other members of the pool. 34

Media

26 See appendix A.
27 Aubert.
28 Jacobs, p. 709.
29 Ibid.
30 Olson, p. 534.
31 Ibid.
32 Boydston, p. 1043.
33 Olson, p. 531. (For a complete list of the Department of Defense Guidelines
for News Media; Central Command Pool Membership and Operating Procedures; and,
Operation Desert Shield Ground Rules, please see Appendix A through C).
34 Ibid.
personnel not participating in theses pools were officially denied access to

United States Armed Forces. 35

The press had three primary complaints about the pool system. The 36

first argument revolved around unilateral media access. 37

The United States

Military, despite the massive press corps within the area of operations,

allocated a scanty 126 slots for reporters, camera operators, and

technicians. 38
Furthermore, many smaller and offbeat news organizations

were never included in any press pools. 39

Though, it should be noted, that
when the logistics of the press pools were put into place the Pentagon was

informed by the Saudi Arabian government that the Saudis would only

provide one visa to any one press organization. 40

The second complaint was

the military's close observation of the reporters who were operating in the

press pool system. 41

In agreeing to participate in the press pools the

correspondents agreed to be escorted by public affairs officers onto the

battlefield.
42
The press complained that the presence of public affairs

officers at interviews with enlisted soldiers inhibited the soldiers, who were

less candid that they might have otherwise been. 43

The third complaint

about the pool system was that the military had the potential to use it as a

reward and punishment on the basis of the stories the correspondents

35 Jacobs, p. 710.
36 Jacobs, p. 689.
37 Ibid.
38 Ibid.
39 Boydston, p. 1077.
40 Olson, p. 531.
41 Jacobs, p. 690.
42 Ibid.
43 Ibid.
wrote. 44
Writing favorable stories resulted in a slot on the press pool, while

unfavorable stories almost guaranteed exclusion from the press pools. 45

In light of all of these complaints it is necessary to point out that the

basic tenets of the press pools were agreed upon by both the press and the

military. 46
After the media outrage at the blatant and unconstitutional

censorship imposed during the invasion of Grenada, the Department of

Defense was forced by public pressure to review its procedures regarding

media coverage of military operations. 47

At the request of the Chairman of the Joint Chief of Staff, a panel of

retired media and military personnel representing the four branches of the

service convened to make recommendations regarding the management of

media-military relations during hostile military operations. 48

The panel

made eight recommendations and prefaced them by saying that the

"...media should cover [United States] military operations to the maximum

degree possible consistent with mission security and the safety of [United

States] forces." 49
It further went on to recognize that the media and the

military have concurrent responsibilities with respect to coverage of

military operations. 50
The panel made eight recommendations, including

the creation of media pools. 51

44 Ibid.
45 Ibid.
46 Olsen, p. 521.
47 Ibid.
48 Ibid.
49 REPORT BY CHAIRMAN JOINT CHIEFS OF STAFF MEDIA-MILITARY RELATIONS
PANEL 1 (1984).
50 Ibid.
51 Ibid. These recommendations were:
1. "That public affairs planning for military operations be conducted concurrently
with operations planning."
2. That media pools be employed during initial military operations to provide "the
media with early access to an operation."
 The process for limitation of press access to the battlefield was well

defined, both during and prior to the Gulf War. 52

But, what about the

constitutionality of this process? It has already been established in the

argument of pre-publication review, based on the case of Near vs.

Minnesota ex rel. Olsen, that the government may not suppress the dis-

semination of information in the media's possession except under extreme

instances, such as war. 53

This does leave the open question, however, as to

what the government may do to prevent the news media from acquiring
information in the first place. 54
In other words, 'Does the press have a

constitutional right to acquire information from the government?' 55

To answer the constitutionality of this question we need to look at

cases not dealing directly with the media's right to access directly. This

exact scenario has been brought to the Supreme Court once and the Court

of Appeals for the District of Colombia once. 56

The Supreme Court case was Flynt vs. Weinberger, in which the

publisher of Hustler filed suit against the Secretary of Defense and others,

challenging the censorship imposed during the invasion of Grenada in

3. That the Secretary of Defense determine whether a pre-established list of

accredited correspondents or news agency list of accredited correspondents be used
to fill the media pools.
4. "That a basic tenet governing media access to military operations should be
voluntary compliance with security guidelines and ground rules established by the
military."
5. That military planning include sufficient equipment and personnel to assist
corespondents covering an operation.
6. That the military dedicate communication facilities to the media.
7. That the military provide transportation support to the media.
8. That senior military public affairs representatives and news origination
representatives meet on a regular basis to improve military-media cooperation.
52 Please see Appendix A-C and footnote 53.
53 Jacobs, p. 711. (Please see Page 3 and footnote 13 for the basis of Near vs.
Minnesota ex rel. Olsen).
54 Ibid.
55 Ibid.
56 Olsen, p. 525, 527.
1983. 57
The second case, before the Court of Appeals for the District of

Colombia, was during the waning days of the Persian Gulf War, during the

case of Nation Magazine vs. the United States Department of Defense. 58

During this case several news organizations filed suite against the

Department of Defense challenging the constitutionality of the Department

of Defense press restrictions issued during the Persian Gulf War. 59

Both cases were ruled moot under prudential concerns and Article III

case and controversy requirements. 60

These basically state that a case
becomes moot when "...the issues presented are no longer 'live' at the time

of judicial review." 61
Unfortunately, with the current trend of fast, surgical

strikes, and rapid insertion and displacement warfare it would be physically

impossible to bring a case to court while the issues are still 'live'. 62

The Supreme Court has, in a line of cases, recognized a limited First

Amendment right of access to information. 63

The three most striking cases

are Brazenburg vs. Hayes, Pell v. Procunier, and Globe Newspaper Co. vs.

Superior Court. 64

In Brazenburg vs. Hayes a newspaper reporter wanted First

Amendment protection to shield him from being forced to divulge confi-

dential information to a grand jury on the basis that his right to gather

news required that he keep his sources confidential. 65

The court disagreed

with this argument, and stated that the First Amendment did not protect

57 Ibid, p. 525.
58 Ibid.
59 Ibid.
60 Ibid, p. 527.
61 Ibid.
62 Heinl.
63 Jacobs, p.711.
64 Boydston; Olsen.
65 Olsen, p. 523.
him from responding to grand jury investigations. 66
In its conclusion the

court noted:

Despite the fact that news gathering may be hampered, the press is
regularly excluded from grand jury proceedings, our own conferences,
the meeting of other official bodies gathered in executive session,
and the meetings of private organizations. News men have no
constitutional right of access to the scene of crime or disaster when
the general public is excluded, and they may be prohibited from
attending or publishing information about trials if such restrictions are
necessary to assure a defendant a fair trial before an impartial
tribunal. 67

In ruling so, the Court claimed that press privileges do not rise to entitle-

ment, while the fact that the media does enjoy such privileges cannot be

overlooked. 68
Seemingly, the Court hinted at a limited First Amendment

right of access to information.

In Pell vs. Procunier, the press claimed it had a constitutional right to

interview specifically-named prison inmates. 69

While the court ac-

knowledged that the press was extended some First Amendment protection

it declined to extend that protection to correspondents seeking access to

prisons. In this case Justice Stewart said:

70

The Constitution does not...require government to accord the press

special access to information not shared by members of the public
generally. It is one thing to say that a journalist is free to seek out
sources of information not available to members of the general pub-
lic....It is quite another thing to suggest that the Constitution imposes
upon government the affirmative duty to make available to journal-
ists sources of information not available to members of the public
generally. 71

66 Ibid.
67 Jacobs, p. 712.
68 Ibid.
69 Ibid, p. 524.
70 Ibid.
71 Ibid.
The Court concluded this case by stating that the Constitution imposed no

duty on prison officials to provide press access to information not available

to the general public. 72

A few years later in the case of Globe News Paper Co vs. Superior

Court, a news paper company challenged a state statute closing all trials

involving sex offenses against minors. 73

While the Court ruled in favor of

Globe News Paper Co., it did recognize that "the right of access was not ab-

solute, and that the government could deny access to the press and the
public if a compelling government interest was demonstrated". 74

Because the Court failed to reach the merits of Flynt vs. Weingerger,

and Nations Magazine vs. United States Department of Defense we have to

extrapolate the limited right of the press's access to hostile military op-

erations from the three cases discussed earlier. The common thread that

links Brazenburg vs. Hayes, Pell vs. Procunier, and Globe Newspaper Co.

vs. Superior Court is that they all recognize the right of press access is not

inherently guaranteed in the First Amendment.

Critics of the press restrictions will find no relief in the First

Amendment and the mountain of judicial rulings that have followed. Pre-

publication review has been found to be constitutional in the past, with the

two most prevalent cases being Near vs. Minnesota ex rel. Olsen and New

York Times Co vs. United States. 75

Both of these cases set forth the right of

pre-publication review so long as it fit a narrowly defined governmental

interest, as it did in the Persian Gulf War. 76

In the age of real time

72 Boydston, p. 1097.
73 Olsen, p. 525.
74 Boydston, p. 1098.
75 Please see footnote 13 and 15.
76 Jacobs, p. 694.
communications capabilities the potential for disclosing damaging

information is great. These damaging disclosures include everything from a

story that might alert the enemy of an impending attack, to a television

broadcast that could give away a units location by showing surrounding

terrain. 77
Even photographs of uniform insignia and the types of uniforms

worn provide potential intelligence information to the enemy. 78

Therefore,

positioning of military censors to review all news stories certainly serves

the governments interest in maintaining operational security.

The hope of finding a reprieve from the press pool system in the

current judicial quagmire is just as bleak. The right of journalistic access to

news, or to the places where news is found, has never even been rec-

ognized by the Supreme Court. 79

Further, many cases specifically state that

no such constitutional right exists, except as a figment of the publishers

imagination. 80
By current case law, the government is only required to show

that the press pool restriction is reasonable. 81

The government can prove

this with the arguments of surprise, access, and agreement. 82

The first argument revolves around surprise. It is impossible for the

military to plan massive secret deployments, like those used in the Gulf

War, under intense media scrutiny. 83

Secondly, the media was provided

access to the battlefield, though it was under the constraint of public affairs

officers. 84
Thirdly, the media's heavy complaints about the press pool

77 Ibid.
78 Heinl, p. 126.
79 Jacobs, p. 678.
80 Ibid. (This is based on the findings in the case of Branzburg vs. Hayes)
81 Olsen, p. 533.
82 Jacobs, p. 721.
83 Boydston, p. 1106.
84 Jacobs, p. 722.
system don't hold up under scrutiny because it was a product of advanced

negotiations between the pentagon and the press. 85

In conclusion, the debate concerning the constitutionality of the press

restrictions imposed during the Gulf War is over, and the Pentagon has won

with an overwhelming amount of judicial evidence on their side.

85 Ibid.
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