A federal appeals court is mulling whether to restore a judge’s injunction protecting journalists and legal observers from being targeted by federal agents responding to protests and civil unrest in Portland, Ore.
During oral arguments Thursday, a three-judge panel of the 9th Circuit Court of Appeals appeared split on whether to issue a stay that would effectively reinstate the preliminary injunction that U.S. District Court Judge Michael Simon imposed last month after issuing a similar temporary restraining order in July.
Another three-judge panel voted, 2-1, late last month to issue an administrative stay that lifted Simon’s order, but another panel was assigned to consider whether the injunction would be in effect or not while the government’s appeal seeking to overturn the order goes forward.
While the appeals court issued no ruling Thursday, Judge Diarmuid O'Scannlain, a Reagan appointee, sounded skeptical of the injunction. By contrast, Judge Morgan Christen, an Obama appointee, suggested there was enough flexibility for the authorities in the order that the appeals court should allow the injunction to go back into effect.
The third jurist on the panel, Clinton-appointed Judge Johnnie Rawlinson, seemed like she could be the swing vote. Her take on the injunction was harder to assess, but she said the case involved the challenge of balancing the rights of journalists “against the right of the police to maintain order.”
“How are we supposed to make that balance?” Rawlinson asked.
The injunction and earlier TRO Simon issued bars federal agents from using force against journalists or legal observers and exempts them when orders are given to the general public to disperse. Officers remain free to arrest people who claim to be press or observers, but who engage in criminal activity.
Justice Department lawyer Sopan Joshi told the court that the injunction puts federal agents in danger and complicates their work.
“This injunction is currently hanging over their heads and every interaction comes with an untenable choice, which is they have to risk their safety or risk contempt,” he said.
Joshi also said officers face danger from individuals who claim to be press in order to get behind police lines.
“The whole point of a dispersal order is to clear the area of everybody,” Joshi said. “The unrebutted facts show that there are violent opportunists that are hiding behind and pretending to be press.” The DOJ lawyer also asked what officers are to do if “everybody in the crowd pipes up and says, ‘I’m a journalist.’”
Matthew Borden, an attorney who brought the case in cooperation with the American Civil Liberties Union, said the concerns about troublemakers masquerading as journalists are exaggerated and that the judge’s orders have proven workable. “There is a perfect track record of safety under this injunction,” he said.
Borden said the injunction is crucial to guarantee an independent perspective on the disturbances in Portland and the efforts to quell them. “Allowing the government to control the news is the hallmark of a dictatorship ... They have a public affairs agent who is there taking video and taking photographs,” he said. “Somebody needs to be there to document whether these dispersal orders are legal and whether they’re being enforced in a proper and constitutional way.”
Joshi argued that the injunction privileges journalists by guaranteeing them “special access” in a way the Supreme Court has never countenanced.
O'Scannlain seemed to agree with that assessment, but Borden insisted that was not the case. He said that while federal agents might be infringing on the rights of many members of the public, including protesters and other passers-by, journalists had the right to go to court and seek protection for themselves even if the injunction Simon granted is “underinclusive.”
Borden also said that given the series of allegations that some federal agents directly targeted journalists with less-than-lethal munitions, an order giving media representatives some added protection was appropriate. “Maybe it’s a broader protection than what they might otherwise be entitled to, but it is a reasonable exercise of equitable powers,” he said.
Christen said there were “lots and lots of examples” in the court record of journalists claiming they were injured by federal officers. And she emphatically noted that many courts have joined the 9th Circuit in finding a constitutional right to videotape police.
“That right has been explicitly recognized by the 1st, 3rd, 5th, 7th and 11th Circuits. We’re not alone in that regard,” the judge said.
Christen also noted that the injunction permits incidental use of force against journalists if they happen to be intermingled with others legitimately targeted by authorities. And she also questioned whether the federal agents have authority to issue dispersal orders off of federal property.
Joshi said that power exists at the federal courthouse and in a park nearby, but the full scope of that authority isn’t relevant to the current case.
One issue that came up near the outset of the 40-minute argument, which the judges and Borden joined by videoconference and Joshi joined by phone, was just where the federal agents are now.
The Trump administration dispatched dozens of Border Patrol and Immigration and Customs Enforcement officers to Portland in early July after declaring that local officials were being ineffectual in preventing damage to the federal courthouse and other federal buildings. The deployment was opposed by Portland’s mayor and seemed to amplify the protests.
Several weeks later, the Trump administration and Gov. Kate Brown (D-Ore.) struck a deal to have state police take over protection of the courthouse. Brown and other officials said the federal agents were leaving town, but federal officials were cagey about who — if anyone — was leaving.
Joshi maintained that caginess Thursday as O’Scannlain asked what the “status” is of the agents that were sent to Portland.
“I don’t think it’s a matter in the record or of public record,” Joshi said.