A Judge Let the Pentagon Fire Three Stars and Stripes Journalists Over Interviews They Were Cleared to Give

WASHINGTON — A federal judge on Friday cleared the way for the Pentagon to finish firing three employees of Stars and Stripes, the military newspaper that has operated for generations with a measure of independence from the chain of command it covers.

In a 24-page ruling, U.S. District Judge Trevor McFadden denied a request from publisher Max Lederer, editor-in-chief Erik Slavin and Middle East reporter Lara Korte to freeze their terminations while their lawsuit proceeds. McFadden concluded that the government had likely not violated their First Amendment rights when it moved against them last month.

All three were handed separation notices in August and placed on administrative leave over allegations of insubordination. For Slavin and Korte, the insubordination cited in their notices was an interview they gave to CBS News for a "CBS Sunday Morning" segment that aired in July. In it, Korte said she worked for Stars and Stripes, "not for the Pentagon, not for any administration, not for any policymaker."

The firings came days after the paper published a story about deteriorating mental health, and shortages of food and water, aboard the aircraft carrier USS Abraham Lincoln during a nine-month deployment. According to the lawsuit, Pentagon officials ordered Lederer to issue the separation notices to Slavin and Korte the day after that story ran. He declined to deliver them and chose to resign instead. He was fired before he could.

Much of McFadden's analysis turned on a narrow question with a long line of Supreme Court precedent behind it: whether Korte and Slavin were speaking to CBS as private citizens or as part of their official duties. Government employees keep First Amendment protection for the former and largely lose it for the latter. The judge found their speech was likely official. He was not complimentary about the Pentagon's conduct in getting there. "At bottom, on the current record, Plaintiffs' real complaint seems to be that they were victims of a cruel bait-and-switch," McFadden wrote. "They are being fired for giving pre-approved interviews on their paper's behalf in which they largely toed the company line. Whatever else such a scheme may violate, it does not clearly offend the First Amendment."

The ruling landed hours after both sides argued the point in a Washington courtroom. Taryn Wilgus Null, representing the journalists, told McFadden that her clients had appeared as sources rather than as reporters, were speaking "on matters of public concern," and "were not acting within their ordinary job duties." She reminded the court that "government employees do not lose their First Amendment free speech rights," and noted that each of them had a choice about whether to sit for the interview at all.

Brett Covington, the Justice Department lawyer arguing for the Pentagon, said all three routinely gave interviews as part of their normal work, and pointed out that the CBS interview was recorded at Stars and Stripes headquarters with colleagues visible in the background. He cited an email in which Korte wrote that she would "rather eat glass" than let the federal government dictate what she could write, arguing the message showed she was worried about performing her job duties. He also told the court that the Abraham Lincoln story had nothing to do with the terminations, saying the process had begun more than a month before it was published. "Our position is, it's a red herring," he said.

Before ruling, McFadden acknowledged that both sides had case law on their side and that the dispute called for a heavily fact-driven analysis that could come out differently for each of the three journalists. Stars and Stripes is run by the military and partly funded by taxpayers, an arrangement that has always sat awkwardly beside its editorial independence. The lawsuit continues.