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No Constitutional Right to Military Embed Status

(CN) - A journalist cannot challenge the military's decision to revoke his embed status after he published a video of wounded soldiers on the Washington Times website, a federal judge ruled.

In January 2010, Wayne Anderson, a freelance journalist, applied for "military embed-journalist accommodation status" in Afghanistan, and as part of the process, signed a set of rules governing media personnel.

His application was accepted, and Anderson joined the Minnesota Army National Guard in Kabul.

Six months later, he filmed an ambulance offloading American servicemen who had been attacked in what his complaint pro se complaint described as a "controversial shooting". His story and video footage were published on the Washington Times website.

The next day, Anderson's embed was revoked because his video allegedly showed the identifiable faces of wounded soldiers, in violation of the media ground rules.

Anderson denied that the soldiers were identifiable, and challenged the military's decision in federal court.

But U.S. District Judge John Bates dismissed the complaint in its entirety, both for lack of jurisdiction and for failure to state a claim.

In doing so, Judge Bates concurred with the position of the defendants who argued Anderson failed to properly serve them in their individual capacities because he attempted to serve them only at what he believe to be their work addresses.

Anderson did not dispute that he tried to serve the defendants at their work addresses, but argued that his attempts were proper because they were made in good faith, and because the defendants' employers would not provide him with their "personal or regular contact addresses."

Rejecting this argument, Bates noted that as of April 9, 2013, Anderson was "aware of the contact information for an agent designated to accept person service" for defendants Brigadier General Sean Mulholland, Colonel Gregory Julian, and Colonel Hans Bush.

"Anderson was also on notice that his attempts at service on all defendants in their individual capacities had been insufficient," he wrote in a 20-page opinion.

The court's lack of jurisdiction addressed, Bates also rejected Anderson's contention the defendants violated his First Amendment rights to free speech and freedom of press, and his Fifth Amendment due process rights, when they terminated his status as an embed reporter.

"Both of Anderson's claims rely on the validity of his assertion that he has a constitutionally protected right to be an embed journalist," Bates wrote. "This Circuit's clear statement that such a right does not exist is therefore fatal to his claims."

The judge was referring to the court's 2004 decision in Flynt v. Rumsfeld, in which "the D.C. Circuit held that the First Amendment does not guarantee to the press a right to be embedded with military units."

"There, the Circuit found that '[t]here is nothing we have found in the Constitution, American history, or our case law to support [appellants'] claim' 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," the Judge explained.

Lastly, Bates held that because Anderson sought only to reverse the order ending his embed status, but no monetary damages, he cannot sue for breach of contract.

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