Shotgun in the Hummer?

There is no constitutional right allowing journalists to cover troops in a war zone, a U.S. appeals court in Washington ruled yesterday.

Fortunately not the Ninth. And who would claim such a right?

The ruling came in a suit brought by publisher Larry Flynt and Hustler magazine over access to U.S. troops in Afghanistan. Mr. Flynt contended that there was a "First Amendment right of the news media to have access to U.S. troops in combat operations," and that the Pentagon's delay in allowing Hustler correspondents access to the troops in Afghanistan violated that right.

Hopefully Flynt picked up the tab? Or did you and I?

Phil Carter disagrees, with several valid points. But the court opined (as Mr Carter posted):

After some pressing, at oral argument it became clear that they claimed a right, protected under the First Amendment, in their own words, to "go[ ] in [to battle] with the military." This right is different from merely a right to cover war. The Government has no rule at least so far as Flynt has made known to us that prohibits the media from generally covering war. Although it would be dangerous, a media outlet could presumably purchase a vehicle, equip it with the necessary technical equipment, take it to a region in conflict, and cover events there. Such action would not violate Enclosure 3 or any other identified DOD rule.

With that distinction made, appellants' claim comes more sharply into focus. They claim that the Constitution guarantees to the media -- specifically Hustler's correspondent -- the right to travel with military units into combat, with all of the accommodations and protections that entails -- essentially what is currently known as "embedding." Indeed, at oral argument appellants' counsel stated that the military is "obligated to accommodate the press because the press is what informs the electorate as to what our government is doing in war."

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The facial challenge is premised on the assertion that there is a First Amendment right for legitimate press representatives to travel with the military, and to be accommodated and otherwise facilitated by the military in their reporting efforts during combat, subject only to reasonable security and safety restrictions. There is nothing we have found in the Constitution, American history, or our case law to support this claim.

And as far as the history of press on the battlefield, I'm not sure there is a real precedent to the recent Iraq war example. But the imbedded reporters accomplished little, insofar as those who didn't want to believe that their reports were anything other than propaganda simply dismissed them as tools.

Historically, reporters relied on their wits (and a good rapport with the troops) to get to the front lines.

Joe talked his way into the X-Ray battle, and, sitting on a box of hand grenades, landed in a Huey at 9:30 PM the first night. He remained on the ground with the men of the 1/7 Cav for the rest of the 3 day battle.

Nothing there about waving the constitution under any one's nose and calling shotgun in the hummer.

Nor is there here.