PORTLAND, Ore. (CN) — Attorneys argued Tuesday over the question a federal judge said was likely to end up at the U.S. Supreme Court: whether journalists have First Amendment rights to cover protests that are distinct from the rights of the general public.
Federal agents never left Portland. They are just out of sight. In a proposed class action lawsuit, journalists and legal observers got a restraining order barring local police and federal agents from targeting them for assault and arrest as they cover protests sparked by the police killing of George Floyd that have continued for over 80 days. And although nightly clashes with federal agents have quieted, court documents in the case show White House senior policy adviser Stephen Miller contradicting Oregon Gov. Kate Brown’s July 29 announcement that federal agents would begin to leave Portland under via a “phased withdrawal.”
“It’s not a phased withdrawal either,” Miller wrote in an email to Chad Mizelle, acting general counsel for the Department of Homeland Security, and John Gountanis, acting chief of staff for the agency.
Court documents also show Ken Cuccinelli, acting deputy secretary for the Department of Homeland Security, scoffing at the restraining order.
“It’s offensive, but shouldn’t affect anything we’re doing,” Cuccinelli said about the temporary restraining order in an email on the day it was entered.
That’s why U.S. District Judge Michael Simon should grant an injunction making the restraining order more permanent, an attorney for the journalists and legal observers said at a hearing Tuesday.
“They haven’t left,” Attorney Matthew Borden said of the federal agents sent to Portland by President Donald Trump as part of Operation Enduring Valor. “They have reserved their right to go back out anytime they feel like it.”
Borden said the emails show the necessity of an injunction — as does the federal agencies’ failure to discipline a single agent for targeted assaults of journalists and legal observers, their inability or refusal to identify the agents involved or even to counter declarations from 34 journalists and legal observers describing such events. Fourteen of the assaults documented in the declarations took place after the court entered the restraining order.
Borden called the city streets where protests have played out “classically public places” where journalists have a legal right to observe and report.
“This is the press. These are protests and these two things go hand in hand,” Borden said. “The TV cameras that captured Bloody Sunday and John Lewis going across the bridge in Selma — that was a cataclysmic event. We saw police brutality and racism. It was ugly and it was exposed on TV for everybody to see. If TV cameras hadn’t been there in Selma, nobody would know that people were beaten.”
But Jordan Von Bokern argued on behalf of the government that the press has a right to remain in an area only if the general public shares that right. Simon’s restraining order allows journalists and legal observers to remain after police and federal agents have declared the event a riot or an unlawful assembly and ordered crowds to disperse, so that they can document arrests and any accompanying acts of violence.
“They cannot show that the general public has the right to be present at a riot,” Von Bokern said. “So their claim that members of the press can say ‘No thank you, we decline to disperse from this riot’ — that can only be true if members of the general public can also decline.”
Judge Simon said he had been thinking about that issue for weeks.
“If any question from this case is likely to end up before the U.S. Supreme Court, it’s this one,” Simon said.
Borden said protesters and journalists might be in the same spot at the same time, but they are exercising different rights under the First Amendment.
“Protesters are asserting a right to assemble and demonstrate,” Borden said. “Press are asserting a different right, which is to record and observe. The idea is that these people are using a public forum at the same time to do two different things.”
Borden compared the situation to an artist and a musician, both of whom want to express their art in public. It would be understandable for a city to ban loud music after 10 p.m., Borden said, even though that would impact the musician. But if the city banned all artistic expression after 10, that would violate the First Amendment.
“It would preclude the artist, or the mime, or anyone from expressing their First Amendment rights,” Borden said.
Similarly, he added, federal agents who say they are here to protect the federal courthouse must narrowly tailor their own rules.
Von Bokern said the journalists appeared to be asking the court to rewrite the law covering when police are allowed to disperse unlawful gatherings.
“This is not a government proceeding,” Von Bokern added. “The right of access applies to government proceedings like criminal trials. Plaintiffs have not explained how an ad hoc response to criminal activity is a government proceeding.”
Von Bokern dismissed requests like clearly identifying federal agents with a unique number as “a best practices wish list.”
“It puts the court in the place of a roving inspector general of all federal law enforcement present just because there is a chance, one day, that someone’s constitutional rights could be violated,” Von Bokern said. “It’s a separation of powers problem.”
But Judge Simon said steps like clearly identifying individual agents are “squarely within the wheelhouse” of appropriate responses to the evidence so far introduced in the case.
“One of the problems is that we don’t know who the officers are who did some of these egregious actions,” Simon said. “We don’t know how widespread it is. I’m perfectly willing to assume that most law enforcement officers follow the law and do the right thing. But it appears that we have some officers that are targeting journalists and legal observers in violation of their First Amendment rights, and all we need to do is find out who those officers are. Is it a problem caused by insufficient training? Or is it that they haven’t been disciplined and they know they won’t be? Or is it a problem that we can’t stop, except by excluding those officers from this arena?”
Simon said he would issue a written ruling on the motion for preliminary injunction by 5 p.m. on Thursday — when the temporary restraining order is scheduled to expire.