While it is always critical for journalists who are war correspondents (Appeals Chamber, 2002) to exercise extreme care in reporting on what they see, they still have many basic rights and obligations that need to be protected and actively defended. In this instance, many of these are directly threatened and must be addressed because they could be seen as extreme encroachments upon core Constitutional expectations. In particular, there seem to be at least the following major points that could be used as the basis for a successful defense:
There is no indication that the incident in question is of sufficient importance to justify a direct suppression of the First Amendment right to the Freedom of the Press. The fact that there is or might be a verbal agreement and a PR strategy would not constitute as justification for not reporting on what amounts to otherwise criminal wrong-doing, possibly on a number of fronts -- including by U.S. military personnel. While theft might be an acceptable incident in a setting like this under general war conditions, the presence of U.S. And possibly other sanctioned military personnel changes the nature of the act and calls into question what the troops are doing under cover of government authority. As noted below too, the use of Prior Restraint against duly authorized journalists is very significant. The journalist was vetted by the military and was thus certified to be qualified to make these types of journalistic decisions. Voiding that right through an action of Prior Restraint would be considered a particularly egregious action on the part of the military for what may or may not be a legitimate military activity (Robbe, 2011).
Second: There is no indication that the activities that the journalist saw would fallen under the kinds of terms normally associated with the rules journalists follow when embedded with troops. In general, these agreements are limited to information about where troops are or have been collectively, how many troops are at a given place, where troops might be in the future, and other similar information of critical importance. Since about 2003, these agreements have become more open to allow for professional access to journalist, not more restrictive to whatever the military says it wants to keep private (see Constitutional Rights Foundation, 2011).
Third: The fact that a high level officer issued a directive would probably not be considered sufficient to override journalistic integrity. While it is the case that journalists have to live within the military and thus have to conform to certain standards and expectations, in the long run they are not military personnel. The directive not to discuss or report on the incident would probably have to come about in another way, though it might still be viewed by the journalist as an inappropriate order under the circumstances. One of the very reasons that the rules for embedded journalists has been evolving over the years is to ensure that deviations from high level DOD directives are not superseded by even command personnel because of the greater danger that is risked to American standards and precedents.
Fourth: A case could be made that the incident was viewed by a number of people and, as such, that the story could well have gotten out anyway. This is important in that it would be more difficult for the military to sustain its argument that the simple action of the journalist was would have caused a supposed breach of intelligence or operating expectations. The ability of a number of other people, including those who were stealing the art items, to share what had happened -- and to share it quickly with high-technology phones or computers -- could have actually allowed the information to get out in a way that would have suggested the U.S. was in partnership on direct criminality. This spin on the story could actually have brought about even greater harm to the reputation of the troops than the reporting of a single incident (Winslow, 2011).
2. Spousal Defamation of Character
In actuality, it does not seem clear that any case can be made for the defamation of the person's character since the facts are probably true, there is no indication that the reporting was malicious, and because of the close association with the person to a certified public…