On July 23, the 9th United States Circuit Court of Appeals ordered that federal agents in Portland, Ore are blocked from “dispersing, arresting, threatening to arrest, or targeting force against journalists or legal observers at protests.” This order is a victory for the media and the protection of the First Amendment’s freedom of the press, especially as it pertains to news coverage of these protests which otherwise would have seen information suppressed and altered to fit the narrative of the federal government.
Originally sparked by the death of George Floyd and spurred by the push to end systemic racism and police brutality, the protests in Portland, which began on May 29, aim to promote goals such as defunding the police and fixing income inequality. Despite the protesters being relatively peaceful, the federal authorities have descended upon the city to curb violence that Attorney General William Barr has claimed stems from vandalism and other wild behavior performed by protestors.
The violent federal response has led to numerous injuries among protestors, members of the press and legal observers. Unsurprisingly, the authorities in these protests have been flexing their powers by tear gassing the streets, firing munitions and beating people to the point of serious injury.
Similar to the government’s response during a Trump photo op on June 1, which saw authorities using tear gas and batons against both protestors and members of the press, the Portland protest has also seen indiscriminate treatment being used against people involved in the protests. Amelia Brace, an Australian journalist who was struck by police at the Washington D.C. protest, has even said, "I've been shocked to see how many journalists have been attacked, beaten and detained just for doing their jobs."
The mistreatment of the press in Portland was challenged by the American Civil Liberties Union of Oregon when they sued the city of Portland, the U.S. Department of Homeland Security and the U.S. Marshalls Service. Representing various reporters and legal observers who in some way have been harmed by the federal authorities in the Portland protests, the ACLU victoriously obtained an order that protects journalists and legal observers and does not allow for the protections afforded to law enforcement under qualified immunity to stand since their actions would inhibit the constitutional rights of those journalists and legal observers.
While the plaintiffs only received a temporary restraining order against these bodies for 14 days, the order, which was signed by Judge Michael Simon, is essential to protecting journalists as they report about the protests and holding the federal authorities accountable to the law.
The order emphasizes the importance that the press serves in providing information to people who are unable to attend events such as the protests. Quoting a U.S. Supreme Court decision, Cox Broad. Corp. v. Cohn, the order notes that “[i]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.”
Using this reasoning, the court, which also observed that there was no evidence of journalists participating in any illegal activity which would warrant the authorities to treat them like the protestors, established that the government’s interests to essentially curb “chaotic events” as the federal defendants called it, during the protests do not override the press’s duty to report on the events in Portland. As Judge Simon stated, “there is no indication that allowing journalists and legal observers to stay despite a dispersal order interferes with the public's access. None of the government's proffered interests outweigh the public's interest in accurate and timely information about how law enforcement is treating protestors.”
Most importantly, as the ACLU of Oregon notes, this protects the press from the federal authorities as long as they have credentials or some way to prove that they are members of the press. Matthew Borden, a pro bono counsel for the ACLU of Oregon, touted the importance of this order when they said, “this injunction is a critical protection for journalists and legal observers exercising their fundamental right to record and observe police activities at these important protests, and it’s a victory for the nation’s right to receive a full account of these events.”
The sentiments expressed in Borden’s assessment of the order are important and cannot be emphasized enough, especially in a time where protests like those in Portland have become more prevalent across the U.S.
While Barr continues to justify the presence of federal forces, the members of the press have faced an unprecedented attack on their ability to report on protests across the country. The federal defendants in this case, claimed that these were merely “unintended consequences.”
Yet, contrary to what the federal defendants argued, the actions federal authorities used on members of the press were not, as they said, the result of the “unintended consequences” of policing a protest. In fact, the order noted that because members of the press were identifiable, did not participate in illegal activity, were not near protestors and sustained the same violent treatment as protestors, any harm committed by the authorities did not result from unintended consequences. As the order states, “this evidence does not support that the force used on Plaintiffs were ‘unintended consequences’ of crowd control.”
It also distinguishes the press from the protestors which is important because it destroys any argument that could be used to group them among protestors and justify the violent treatment the authorities have used on them (not that the violence protestors have endured is justified either). Since the federal defendants “conceded at oral argument that there is no evidence that any journalist or legal observer has damaged any federal property or harmed any federal officer,” the press’s role in the protests was further established as being ‘“guardians of the public interest,’ not as vandals.”
This order serves as an important reminder to the dangers that journalists subject themselves to in an effort to provide their audience with the latest developments in current events. Journalists have sustained numerous injuries during their coverage of the protests, severe enough that “one national journalist stated that he will no longer cover the Portland protests because of the attacks against him by federal agents.”
The absence of journalists’ reports provides the world with a narrative concocted by the U.S. government that is molded by their intent to justify the federal response. Information available to the public becomes diluted and one-sided, which is a dangerous precedent to set. The order also protects the press from injustices and serves to protect the freedom of the press and our access to media coverage, effectively granting everybody a more balanced narrative about the protests.
After all, as Judge Smith wrote, “Without journalists and legal observers, there is only the government's side of the story.”
*This article was written on July 31, 2020.*