Defense Secretary Pete Hegseth sits during a meeting with Australia’s Deputy Prime Minister and Defense Minister Richard Marles at the Pentagon on Wednesday, Sept. 2, 2026, in Washington. (AP Photo/Mark Schiefelbein)
The Trump administration won a limited victory in federal court this week when a Washington, D.C., judge declined to immediately order the reinstatement of Stars and Stripes ombudsman Jacqueline Smith.
The ruling was tempered, however, by the judge’s decision to reject the Department of Defense’s request for an immediate dismissal of Smith’s lawsuit.
In a nine-page opinion, U.S. District Judge Amit Mehta, an appointee of President Barack Obama, concluded that Smith had not yet shown she was “likely to succeed” in her case. At the same time, he pointed to several unresolved First Amendment questions that warranted allowing the litigation to continue.
The administration argued in a six-page memorandum supporting its motion to dismiss that the legal issue was straightforward.
According to the government, Smith could lawfully be fired because “she spoke as Ombudsman and pursuant to her official duties when she wrote the April 8 column and so her speech was employee speech not protected by the First Amendment.”
Judge Mehta warned that the matter was not so clear. He said the Defense Department’s argument relied on “a strict dichotomy between speech as a public employee and speech as a private citizen,” while it remained uncertain how Smith’s conduct should be classified under that framework.
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The court’s opinion explained the constitutional questions at stake:
When an employee speaks in an official employment capacity, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” But when an employee speaks as a private citizen about a matter of public concern, “the possibility of a First Amendment claim arises.” The judge questioned how those rules apply when a public employee’s job itself involves protected expressive activity, such as a Stars and Stripes reporter whose news article draws opposition from Defense Department leaders.
Mehta wrote that the existing case law could lead to a result he found troubling, particularly at this early stage of the proceedings and without more extensive briefing from the parties.
“If [the government’s tests from precedent] are strictly applied, the reporter acted pursuant to her official responsibilities and therefore enjoys no First Amendment protection from an adverse employment action,” the opinion states. “That would be an odd result. It would mean the First Amendment is but a hollow promise for Stars and Stripes journalists — and perhaps its Ombudsman.”
The judge gave the government two paths forward. The Defense Department may renew its motion to dismiss after addressing additional legal questions and precedents involving journalists employed by the government, or it may submit an answer to Smith’s complaint.
The administration must file its next submission by Oct. 20, according to the court’s order.
The post Judge denies immediate rehiring for Stars and Stripes ombudsman who criticized Pentagon over comic strips, says First Amendment issues abound in blow to Trump admin first appeared on Law & Crime.
