United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 26-5253 September Term, 2025
1:26-cv-01690-PLF
Filed On: July 16, 2026
New York Times Company and Julian E.
Barnes,
Appellees
v.
United States Department of Defense, also
known as Department of War, et al.,
Appellants
BEFORE: Henderson, Millett, and Garcia*, Circuit Judges
ORDER
Upon consideration of the emergency motion for stay pending appeal, the opposition thereto, and the reply; and the motion for leave to submit additional evidence, the lodged declaration, the notice of errata, which contains a corrected motion for leave to submit additional evidence, and the response to the corrected motion, it is
ORDERED that the corrected motion for leave to submit additional evidence be granted. The Clerk is directed to file the lodged declaration of David McCraw. It is
FURTHER ORDERED that the emergency motion for stay be granted and that the district court’s June 30, 2026, order be stayed. Appellants have satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2025). Because the parties have established weighty interests on both sides of the case, our decision turns on the merits. See Ohio v. EPA, 603 U.S. 279, 292 (2024).
*
Circuit Judge Garcia would deny the emergency motion for stay for the reasons stated in the attached dissenting statement.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 26-5253 September Term, 2025
On that point, appellants have demonstrated that, on the record before us, they are likely to succeed on their argument that this generally applicable escort requirement does not constitute a “sufficiently adverse action to give rise to an actionable First Amendment claim” of retaliation. See Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022); see also Media Matters for Am. v. Paxton, 138 F.4th 563, 581 (D.C. Cir. 2025). Appellees have not argued that the escort requirement is not, in fact, generally applicable and applied across the board to all reporters. Nor have they argued that the policy is not being implemented evenhandedly. Neither have they contended that the policy has a distinctively adverse impact on them or their news reporting ability that is different from the policy’s effect on all other covered reporters. In addition, neither Appellees nor the dissenting opinion cite a single case supporting their conclusion that this neutrally and evenhandedly applied, generally applicable policy with no demonstrated distinctive harmful impact on Appellees can, without more, constitute retaliation under the First Amendment. Finally, Appellees’ claims that the escort requirement is unlawful for reasons other than retaliation have not been raised before us as a basis for denying the stay. It is
FURTHER ORDERED, on the court’s own motion, that this case be expedited and that the following briefing schedule apply:
Appellants’ Brief August 10, 2026
Appendix August 10, 2026
Appellees’ Brief September 4, 2026
Appellants’ Reply Brief September 18, 2026
The Clerk is instructed to calendar this case for oral argument on the first appropriate date following the completion of briefing. The parties will be informed later of the date of oral argument and the composition of the merits panel.
Appellants should raise all issues and arguments in the opening brief. The court ordinarily will not consider issues and arguments raised for the first time in the reply brief.
Page 2
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 26-5253 September Term, 2025
To enhance the clarity of their briefs, the parties are urged to limit the use of abbreviations, including acronyms. While acronyms may be used for entities and statutes with widely recognized initials, briefs should not contain acronyms that are not widely known. See D.C. Circuit Handbook of Practice and Internal Procedures 43-44 (2025); Notice Regarding Use of Acronyms (D.C. Cir. Jan. 26, 2010).
Parties are strongly encouraged to hand deliver the paper copies of their briefs to the Clerk’s office on the date due. Filing by mail may delay the processing of the brief. Additionally, counsel are reminded that if filing by mail, they must use a class of mail that is at least as expeditious as first-class mail. See Fed. R. App. P. 25(a). All briefs and appendices must contain the date that the case is scheduled for oral argument at the top of the cover. See D.C. Cir. Rule 28(a)(8).
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Laura M. Morgan
Deputy Clerk
Page 3
GARCIA, Circuit Judge, dissenting:
In October 2025, the Department of Defense adopted a
new, restrictive policy governing credentials for journalists at
the Pentagon. The New York Times and its reporter Julian
Barnes sued, and the district court issued an injunction. See
N.Y. Times Co. v. Dep’t of Def., 824 F. Supp. 3d 27 (D.D.C.
2026). Within days, the Department announced a new policy
that, among other things, required credentialed reporters to be
escorted at all times while on Pentagon grounds. The Times
and Barnes moved to compel compliance, arguing that the
escort requirement ran afoul of the district court’s order. The
district court granted that motion. See N.Y. Times Co. v. Dep’t
of Def., 2026 WL 962252 (D.D.C. Apr. 9, 2026). This court—
based on my vote and Judge Walker’s—granted the
government’s request for a limited stay pending appeal because
the district court’s original injunction “did not address” the
later-imposed escort requirement and “the district court did not
hold that the escort requirement independently violates” the
Constitution. N.Y. Times Co. v. Dep’t of Def., 2026
WL1179440, at *3 (D.C. Cir. Apr. 27, 2026).
The district court has now assessed the lawfulness of the
escort requirement. The Times and Barnes filed a separate
lawsuit directly challenging the new policy. The district court
preliminarily enjoined the policy’s escort requirement after
determining that “it was issued to retaliate against the plaintiffs for exercising their constitutional rights.” N.Y. Times Co. v.
Dep’t of Def., 2026 WL 1872765, at *7 (D.D.C. June 30, 2026).
The district court found all three elements of a First
Amendment retaliation claim satisfied: (1) The plaintiffs
engaged in “activity protected under the First Amendment,”
(2) the escort requirement is an “adverse action that would
deter persons of ordinary firmness from exercising their First
Amendment rights,” and (3) there was a causal link between
the plaintiffs’ protected activity and the imposition of the escort requirement. Id. at *7–13 (citing Media Matters for Am. v.
2
Paxton, 138 F.4th 563, 584 (D.C. Cir. 2025)). The first element
was undisputed. Id. at *7. As to the second, relying on
declarations from affected reporters, former Department
officials, and other record materials, the district court
concluded that the escort requirement “inescapably burdened”
the plaintiffs’ journalistic work. Id. at *9. Specifically, it
dramatically reduced their practical ability to access the
premises and rendered informal and spontaneous interactions
with government sources difficult if not impossible. Id. As the
district court observed, the requirement thus “made it
exceedingly challenging to . . . cover the Department and the
U.S. military from Pentagon grounds.” Id. (quoting Barnes
Decl. ¶ 25); see also Opp’n to Mot. for Stay 15 (“An ordinary
journalist or news organization threatened with the loss of an
entire method of newsgathering based on the substance of their
journalism or their willingness to defend their constitutional
rights in court would most certainly feel a chill.”). And for the
causal link, the district court found “evidence of retaliatory
motive” in “myriad statements by Department officials
expressing disdain for reporting by The Times and other
‘legacy’ media outlets” starting “shortly after the confirmation
of Secretary Hegseth and continuing through the present.”
2026 WL 1872765, at *10. Those “hostile” statements,
coupled with the Pentagon’s shifting and “facially dubious”
rationales for imposing the escort requirement, demonstrated
that the requirement would not have been adopted but for the
plaintiffs’ protected First Amendment activities. Id. at *10–12.
In seeking a stay, the government disputes the second and
third elements—the existence of a sufficiently adverse action
and a causal link between that action and the plaintiffs’ First
Amendment activity. The district court’s factual findings on
the third element can be set aside only if clearly erroneous. See
Media Matters for Am. v. FTC, 2025 WL 2988966, at *6–9
(D.C. Cir. Oct. 23, 2025). The government has not met that
standard, and I do not read the majority to suggest otherwise.
3
As to the second element, courts appear to disagree over the
correct standard of review, and this court has yet to weigh in.
See Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir.
2006) (de novo); Bennie v. Munn, 822 F.3d 392, 398 (8th Cir.
2016) (clear error); see also Davidson v. Chestnut, 193 F.3d
144, 150 (2d Cir. 1999) (collecting cases describing the
question whether an action is sufficiently adverse as “factual in
nature”). Even if review on that issue is de novo, given the
extensive record evidence of the escort requirement’s impact,
in my view the government has not shown it is likely to succeed
on this front either.
The majority’s decision to grant the stay apparently rests
on the proposition that a policy like the escort requirement
cannot constitute an adverse action if it is “generally
applicable” on paper and in practice. But the majority cites no
binding precedent for that proposition, and none exists. We
have never held that a government policy cannot constitute
unconstitutional retaliation simply because it is evenhanded.
And such a holding would likely be incorrect. We have
emphasized that the adverse-action inquiry poses a relatively
low bar. Cf. Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994)
(noting that “the First Amendment protects . . . from ‘even an
act of retaliation as trivial as failing to hold a birthday party for a public employee’” (quoting Rutan v. Republican Party of Ill.,
497 U.S. 62, 76 n.8 (1990)). This element is meant to screen
out claims based on government actions so minor they would
not “inhibit an ordinary person from speaking.”
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 585 (D.C.
Cir. 2002). If threatening to impose a requirement like the
escort requirement on one journalist would (as the district court
found) sufficiently chill his speech, it makes little sense to
suggest that effect evaporates if the government threatens to
impose the same requirement on all reporters. Indeed, the
chilling effect on a speaker with any regard for his peers may
be amplified. Perhaps a policy that places a speaker at a unique
4
disadvantage would be even more chilling in certain
circumstances. But a retaliatory government policy should not
be immunized simply because it is broadly and evenly applied.
For these reasons, I would deny the stay pending appeal.