Court upholds journalists’ right to stay at protests
When violence occurs at a protest, can federal agents order journalists to leave the scene and use force if they refuse? No, says a divided federal appeals court, but the issue may be headed for the Supreme Court.
The case comes from Portland, the site of massive demonstrations since the killing of George Floyd by Minneapolis police in July. A judge who reviewed the evidence found that most of the protests have been peaceful, but there have been incidents of vandalism, looting, arson and assaults. Local and state police have patrolled the streets, while the Trump administration has dispatched U. S. marshals and other federal officers to protect a federal courthouse.
After journalists reported that police had assaulted them with pepper spray and projectiles to remove them from protest areas, the
city agreed in mid-July to an injunction allowing reporters, photographers and legal observers from organizations such as the American Civil Liberties Union to remain at the scene as long as they followed the law and did not act violently. But federal agents then moved to the streets and, according to journalists and their supporters, physically attacked members of the press who refused to leave.
After finding that federal officers had probably targeted the media for retaliation, U. S. District Judge Michael Simon of Portland issued an injunction
Aug. 20 protecting journalists in the city from arrest for remaining when protesters are ordered to disperse. On Friday, a panel of the Ninth U. S. Circuit Court of Appeals in San Francisco denied the Trump administration’s request for an emergency stay of Simon’s order in a 21 decision with strong words on both sides.
The press plays “a vitally important role in holding government accountable,” Judges Johnnie Rawlinson and Morgan Christen said in the majority opinion. They said federal agents had targeted journalists for retaliation, citing Simon’s findings that officers had fired pepper balls and other munitions “directly at journalists’ and legal observers’ chests, arms, backs and heads while they were standing entirely apart from the protesters.”
In dissent, Judge Diarmuid O’Scannlain rejected Simon’s assessment of the evidence and said the Portland protests had “degenerated into riots and destructive mob violence,” which “are simply not governmental proceedings to which a right of public access may be claimed.” The majority ruling, he said, “grants selfidentified journalists and ‘ legal observers’ a special privilege to disregard dispersal orders with which the general public must comply.”
The case remains in the Ninth Circuit for further review of Simon’s injunction, but could eventually be appealed to the Supreme Court, which has generally been deferential to police decisions on use of force. The Justice Department did not respond to a request for comment.
The ruling applies to state as well as federal police conduct.
The court “strongly confirmed that the First Amendment protects journalists engaged in lawful newsgathering from deliberate targeting by the police," said Gabe Rottman of the Reporters Committee for Freedom of the Press, which filed arguments in the case.
Matthew Borden, a lawyer for journalists, legal observers and a Portland newspaper organization that filed the suit, said Portland is President Trump’s “test case.” He cited the administration’s threat to send federal troops to Portland, Seattle and other “Democratrun cities” and withdraw their federal funding.
After some Portland protesters toppled statues of Presidents Abraham Lincoln and Theodore Roosevelt on Sunday night, motivated by Lincoln’s execution of 38 Dakota Indians and Roosevelt’s actions against tribal governments, Trump tweeted Monday, “Put these animals in jail,” and described the events as “Biden! Law & Order!”
In Friday’s ruling, the appeals court said photos showed that federal officers, sent to Portland to protect the courthouse and other federal property, “routinely have left federal property and engaged in crowd control and other enforcement on the streets, sidewalks and parks,” and that some had “targeted journalists and legal observers in retaliation for their newsreporting efforts.”
In one July 29 incident, Rawlinson and Christen said, Brian Conley, whose photographer’s vest and helmet were clearly labeled
PRESS, was filming federal officers pepperspraying peaceful protesters when an officer peppersprayed Conley at pointblank range. Three days earlier, the judges said, videographer Daniel Hollis, with a press label on his helmet, was shot by an officer with pellets near his groin and in his lower back.
The journalists also offered testimony by Gil Kerlikowske, a former U. S. Customs and Border Protection commissioner and Seattle police chief, who said the courthouse in Portland could have been protected without attacking reporters.
O’Scannlain, in dissent, said 120 federal officers had been injured during the protests, and that journalists and “legal observers” — whose legitimacy he disputed — “were frequently interspersed with protesters when events degenerated into violence.”