Can anyone define the parameters to be characterized as a journalist anymore? Am I a journalist? I have this blog, but is that enough? Are you? You “report” on Facebook or twitter, or even here, so why not? It might have been argued in the past that a reporter was someone who worked as a reporter for legitimate media, but even that doesn’t quite cut it, as a silly blog like SJ has many times more readers than the Podunk Gazette.

The First Amendment protects the press, whatever that may be, and with excellent reason. One of the worst aspects of the protests and riots, whether peaceful or destructive, has been the handling of journalists by law enforcement. Shooting reporters in the face, arresting them despite their “credentials,” official press passes prominently displayed, dispersing them along with the masses and the occasional beating, have happened with regularity.

This conduct means two things. First, the cops and feds have used force against people who are distinct from the mob, and whom they know to be distinct. To the extent force can be justified as crowd control, it can’t be excused as unintentional or collateral damage when they have specific knowledge that the person they just beat, shot or arrested was a reporter. If they can distinguish the person from the mob, then the use of force against them is blatantly unlawful.

The second, and more constitutionally significant, is that by engaging in unlawful force against the press, they deprive the public of information, the reporting on matters of public concern, and undermine the constitutional protections afforded the Fourth Estate. Not only do they harm the person and their employer, but they deny the public of the constitutionally protected reporting necessary to knowledgeable participants in a Republic.

The ACLU, since the cause aligns with their politics, sought a temporary restraining order in District of Oregon to prohibit both the City of Portland and the Department of Homeland Security from, inter alia, preventing reporters from reporting. It was granted by Judge Michael Simon.

As alleged in the Second Amended Complaint (“SAC”), Plaintiffs seek to stop Defendants ” from assaulting news reporters, photographers, legal observers*, and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd.
The police’s efforts to intimidate the press and suppress reporting on the police’s own misconduct offends fundamental constitutional protections and strikes at the core of our
democracy.”

This seems not only unremarkable, since there is no authority to assault neutral reports documenting the government’s violence, but about as unworthy of a TRO as, say, an order prohibiting murderers from murdering.

The Federal Defendants argue that journalists have no right to stay, observe, and document when the government “closes” public streets. This circular logic does not help the Federal Defendants. First, the Federal Defendants are not the entities that “close” state public streets  and parks; that is a local police function. Second, the point of journalists observing and documenting government action is to record whether the “closing” of public streets (e.g. , declaring a riot) is lawfully originated and carried out. Without journalists and legal observers, there is only the government’s side of the story to explain why a “riot” was declared and the public streets were “closed” and whether law enforcement acted properly in effectuating that order. Third, the Federal Defendants conceded at oral argument that there is no evidence that any journalist or legal observer has damaged any federal property or harmed any federal officer. Thus, the stated need to protect federal property and the safety of federal officers is not directly affected by allowing journalists and legal observers to stay, observe, and record events.

There are two key aspects of this three-pronged ruling, that the feds have limited authority and, whatever you want that to be doesn’t magically give them the authority to do any more than protect the courthouse and its perimeter. If the Portland cops want to close streets and parks, that’s up to them. The feds, however, have nothing to say about it.

The second key aspect is the feds “concession” that they have no evidence of a journalist or legal observer damaging federal property or harming a federal officer. In other words, they cannot show the reporters strayed from their press function to become protesters or rioters with press passes. This doesn’t mean they were neutral observers, but that they were still observers.

The third rationale, on the other hand, seems questionable.

…there is only the government’s side of the story to explain why a “riot” was declared and the public streets were “closed” and whether law enforcement acted properly in effectuating that order.

The reporters would be present for the conduct precipitating the fed response and the fed response, by definition, as there would be no reason not to be. What they would not be present for is the aftermath of the police response. But how, in the midst of controlling and dispersing a large crowd, would the feds be capable of differentiating individual reporters from the mass surrounding them so as to allow them to remain while all around them are being tear gassed?

Nor is there any evidence that allowing journalists and legal observers to stay despite a dispersal order or not to be subject to violence used against protesters causes others to harm property or law enforcement or interferes with law enforcement’s ability to perform.

Curiously, it’s the ACLU seeking the TRO, but the court’s holding is based on the rejection of the federal defendants’ lack of evidence and “countervailing interest in maintaining public order on public property outweighs Plaintiffs’ First Amendment concerns.” The basis for rejecting this position?

The City’s stipulation to the preliminary injunction is evidence of this workability.

Or evidence that the city folded its tent, and is now enjoying watching the rioters’ hate directed at the feds instead of them.

The pragmatics of managing the media in the midst of a riot are a big problem. There’s no doubt that targeting the media for harm is outrageous, and there’s similarly no doubt that when reporters becomes participants in the riots, they can’t take refuge in their press pass. But how the feds are supposed to cull journalists from the herd as the tear gas is fired and the “troops” advance to clear the streets remains something of a mystery. That Portland cops don’t care is hardly dispositive of it magically being workable.

Then again, it’s not up to the feds to decide what, and for how long, reporters get to report on riots and the fed response. Nor is it the reporters problem to figure out how to make the feds job easier as long as they have a First Amendment right to report. And they do.

But now that the TRO has been issued, how Judge Simon plans to enforce it is another matter. As President Andrew Jackson (ironically) famously said, “John Marshall has made his decision; now let him enforce it.”

*Slipped into the middle of this matter are “legal observers,” who are very different than reporters.

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.

What makes someone a “legal observer” other than wearing a green NLG(!)-issued hat or blue ACLU-issued vest? What is their training? What do they do? What constitutional protections do they get that every other person doesn’t get? By what authority does the NLG and ACLU get to create a special protected class of protester? Beats me. The decision explains nothing.