Defense Secretary Pete Hegseth sits during a meeting with Australia's Deputy Prime Minister and Minister of Defence Richard Marles at the Pentagon, Wednesday, Sept. 2, 2026, in Washington (AP Photo/Mark Schiefelbein).
The Trump administration secured a limited victory in federal court this week as a judge in Washington, D.C., declined to immediately reinstate Stars and Stripes ombudsman Jacqueline Smith.
That win was alloyed by the court also declining a Department of Defense (DOD) request to have the case immediately dismissed.
In the nine-page ruling, U.S. District Judge Amit Mehta, a Barack Obama appointee, found that Smith has so far failed to show she is "likely to succeed" in the case — while citing a bevy of First Amendment issues that have yet to be addressed as a reason to keep the litigation alive.
In the underlying case, Smith alleges she was "wrongfully terminated" and "retaliated against" for publishing an opinion column that "criticized" DOD officials "for their official actions."
"Defendants terminated her for telling the public the truth," the 18-page complaint filed in late June reads. "That Defendants were working to undermine Stripes' editorial independence as part of a broader effort to control and neuter the mainstream media's ability to report on matters of national security and public interest."
Specifically, Smith's April 8 column, written in her role as a media-audience intermediary, harnessed the voices of readers who were upset after the DOD issued a directive that "prohibited" Stars and Stripes from continuing to publish color comics. In broader terms, Smith also took the opportunity to take the Pentagon to task for "attempting to restrict the mainstream media."
In late August, Smith filed a 39-page motion for a preliminary injunction that included a lengthy argument about the relevance of "time periods in First Amendment retaliation cases."
To hear the fired ombudsman tell it, when "an otherwise commendable employee is fired within two weeks of speaking, there is likely a causal relationship" between their speech and what would amount to the prohibited personnel action taken by the government.
Here, 10 days after Smith's column was published, "she was notified that her employment would be terminated many months before the end of her term," according to the lawsuit.
In the latest order, the court sidesteps those temporal concerns but points to other fundamental freedom of speech issues.
The Trump administration, for its part, argued in a six-page memorandum in support of a motion to dismiss that the issue is simple.
The government claims it has the power to fire Smith 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."
Not so fast, the judge cautioned. The court explained that the framework advanced by the DOD "is based on a strict dichotomy between speech as a public employee and speech as a private citizen," and it is not clear where, exactly, Smith falls in such an analysis.
The opinion elaborates:
If the plaintiff speaks in an employment capacity, "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." If they speak as a private citizen on a matter of public concern, however, "the possibility of a First Amendment claim arises." But what if the public employee's job is to engage in First Amendment expressive activities? Take a reporter at Stars and Stripes who writes a news story that meets with disfavor among DoD leadership.
The logic of the current state of case law would produce an outcome the district judge is not comfortable with, at least not at such an early stage in the litigation without full briefing, he noted.
"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 goes on. "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."
To that end, the court gave the government two options: The DOD can either renew its motion to dismiss by addressing a series of additional questions and cases that specifically concern government-employed journalists, or it can file an answer.
Whatever procedural option the Trump administration chooses, it has until Oct. 20 to file its next motion, the court ordered.
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