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Court Reinstates Protections For Journalists, Legal Observers At Portland Protests

Demonstrators clean tear gas from their eyes outside the Mark O. Hatfield federal courthouse in Portland, Ore., July 25, 2020.
Bradley W, Parks
Demonstrators clean tear gas from their eyes outside the Mark O. Hatfield federal courthouse in Portland, Ore., July 25, 2020.

A federal appeals court has decided to maintain an injunction that allows journalists and legal observers to stay behind after federal officers order everyone to disperse at protests in Portland.

Federal officers are once again barred from telling journalists and legal observers to leave political demonstrations. They also can’t arrest or use physical force anyone they should reasonably know is at the protests as a journalist or observer — unless they think the person committed a crime, following a ruling Friday from the Ninth Circuit Court of Appeals.

The injunction had been granted by U.S. District Judge Michael Simon. But a panel of judges on the Ninth Circuit had temporarily suspended it in August after the federal government appealed.

Several reporters for OPB are among the journalists and legal observers suing the city of Portland, the U.S. Department of Homeland Security and the U.S. Marshals Service, alleging they have been targeted by law enforcement in violation of the First and Fourth amendments to the U.S. Constitution at racial justice protests over the summer.

“The Ninth Circuit has vindicated the rights of reporters and legal observers to report and observe critical events,” attorney Matthew Borden, who argued the motion on behalf of the American Civil Liberties Union of Oregon, said in a statement Friday. “This is a crucial victory for civil liberties and the freedom of the press, which are critical to the functioning of our democracy. The court’s Opinion affirms that the government cannot use violence to control the narrative about what is happening at these historic protests.”

In a dissenting opinion, Judge Diarmuid O’Scannlain argued that the injunction “validates the transformation of the First Amendment-based ‘right of public access’ to governmental proceedings into a special privilege for self-proclaimed journalists and ‘legal observers’ to disregard crowd dispersal orders issued by federal law enforcement officers.” He wrote that “a disturbing pattern of apparent misconduct by certain federal officers” was not adequate grounds for granting journalists and legal observers “a unique exemption from lawful dispersal orders.”

Rebecca Ellis is a reporter with Oregon Public Broadcasting. Before joining OPB, she was a Kroc Fellow at NPR, filing stories for the National Desk in Washington D.C. and reporting from Salt Lake City.