Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a Temporary Restraining  Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.

Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986).  Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.

The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."

The TRO lasts for 14 days; the litigation will undoubtedly last much longer.