Federal judge declines to halt firings of Stars and Stripes staffers

A federal judge on Friday declined to stop the Pentagon’s termination of three Stars and Stripes staffers for alleged insubordination, ruling they were not likely to succeed in their claims that the firings violated the First Amendment.

Judge Trevor McFadden issued the decision hours after a hearing that focused on whether two of the employees were acting within the scope of their roles when they gave interviews to “CBS Sunday Morning” about the historically independent military newspaper’s editorial direction.

McFadden acknowledged in a 24-page order that the dispute was at an “early stage” but found the staffers had so far failed to demonstrate that a preliminary injunction was warranted.

“Plaintiffs’ own pleadings and the CBS News segment suggest that they spoke as part of their official duties and not as private citizens,” the judge wrote. “They are thus unlikely to succeed on the merits of their First Amendment claim and do not demonstrate irreparable harm.”

Ousted publisher Max Lederer, Editor-in-Chief Erik Slavin and reporter Lara Korte alleged in a lawsuit filed last Thursday that the Department of Defense (DoD) is retaliating against them for speaking publicly about concerns with the military newspaper’s future editorial independence under current Pentagon leadership.

Taryn Wilgus Null, senior counsel at Democracy Defenders Fund — who filed the lawsuit on the former employees’ behalf, said in a statement that the trio’s attorneys were weighing their legal options following McFadden’s ruling.

“The judge emphasized a plaintiff’s high burden to obtain a preliminary injunction,” Null told The Hill. “While we are disappointed in the decision, we fully expect to prevail after we have an opportunity to take discovery and all the facts are revealed.”

The three staffers were issued separation notices on Aug. 21. According to court documents, officials cited “insubordination and violations of regulations based on their CBS statements” as the grounds for Slavin and Korte’s dismissal, while Lederer’s notice cited his refusal to deliver separation notices to the two other employees, among other reasons.

The publisher announced his retirement on Aug. 19, before his termination, having originally planned to step down as of Sept. 30.

The Pentagon had agreed to pause the firings until at least Friday, pending the judge’s ruling. The Hill has reached out for an update on their employment status.

Null told the judge on Friday that Slavin and Korte were speaking from a “proverbial soap box” on “matters of public concern” during their CBS appearance and were not acting on behalf of the outlet.

The Supreme Court has previously held that a public employee’s speech is constitutionally protected when given outside the scope of their ordinary job duties even if that speech relates to their employment.

But McFadden appeared skeptical during the hearing about whether Slavin and Korte were speaking as private citizens, noting the editor-in-chief regularly gives interviews and questioning whether that made him a “de-facto” spokesperson for the paper.

“Plaintiffs’ comments were not a story, op-ed, or breaking headline that they edited or authored,” McFadden concluded in his opinion. “Indeed, Slavin and Korte’s statements were made to another media agency altogether. They were acting as spokespersons for their paper or as sources for another organization.”

The judge was also unpersuaded by claims that unfavorable coverage on the USS Lincoln’s extended deployment in the Middle East served as an “accelerant” for their firings.

The Justice Department asserted during the hearing that the decision was made weeks prior to the article being published, refuting Null’s claim that the Pentagon sat on the notices.

“It’s a red herring,” assistant U.S. attorney Brett Covington told the judge.