PORTLAND, Ore. (CN) — In a move that would define government recognition of who a journalist is, a federal judge floated the idea of requiring reporters at Portland protests to be vetted by the American Civil Liberties Union and identified by the organization's blue vests in order to avoid assault or arrest by federal agents.
U.S. District Judge Michael Simon said in a hearing Friday that the move might be a solution to claims from the Department of Homeland Security and the U.S. marshals that his restraining order is unworkable because — according to the agencies — some protesters are falsely identifying themselves as press.
Last week, Simon ordered federal agents squaring off nightly with protesters around the Mark O. Hatfield Federal Courthouse to let people identified as journalists (wearing a press pass or clothing with the word “press”) and legal observers (who wear blue ACLU vests or green National Lawyers Guild hats) do their jobs without subjecting them to the use of force, dispersal orders or arrest.
But the federal agencies claim the order is unworkable, in part because they say protesters are falsely adopting the insignia of the press. The federal agencies also note in court documents that agents’ ability to clearly see and identify journalists is inhibited by their own copious deployment of tear gas.
At Friday’s hearing, Judge Simon pointed to a video submitted by the government that allegedly shows a protester wearing a helmet emblazoned with the word “PRESS” burst through the barrier set up by federal agents and calling out to other protesters to join him.
“I think he said ‘they can’t arrest us all,’” Simon said. “I think he even said, ‘that’s why we have the Second Amendment.’ Folks, I sure hope this case is about the First Amendment and not the Second Amendment.”
He added: “Simply having ‘press’ on your helmet might not be the best way to preserve First Amendment rights.”
Matthew Borden, attorney for the journalists and legal observers, told Simon the temporary restraining order protects his clients from targeted assault, arrest and dispersal, merely for doing their jobs – it doesn’t change the fact that anyone is subject to arrest if federal agents have probable cause to believe they have broken the law.
“The basis for the TRO is if you are there to do your job you can do that,” Borden said. “This guy – I don’t think he gained any get out of jail free card by having press on his helmet. They can see what the guy’s doing and if it’s wrong, they can arrest him. At the end of the day, they still can’t identify anyone who used the word ‘press’ to escape culpability for doing something wrong.”
Simon said treating journalists more like legal observers would make the restraining order more workable for the federal agencies.
“We could redefine ‘journalist’ to someone who is authorized by the ACLU,” Simon said. “The ACLU could maintain a list of who they are giving vests to and give them appropriate guidance and instructions. That way we might be able to solve the problem of somebody just putting ‘press’ on their helmet or their shirt.
Simon said this was a measure he was merely considering.
“This may or may not be a good idea,” Simon said. “Maybe we try it just for two weeks, then at the hearing preliminary injunction, you all can tell me whether there are problems with it and whether they are solvable or unsolvable.”
Borden said that probably wouldn’t fly under the First Amendment.
“The ACLU shouldn’t be — I don’t think anybody should be trying to say who’s a journalist and certainly not my client,” Borden said. “I don’t think they have the resources to do that or the confidence.”
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