San Francisco Chronicle

Court upholds journalist­s’ right to stay at protests

- By Bob Egelko

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.”

 ?? Nathan Howard / Getty Images ?? Police have assaulted journalist­s at protests like this one in Portland, Ore., in September.
Nathan Howard / Getty Images Police have assaulted journalist­s at protests like this one in Portland, Ore., in September.

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