The court noted that the City had separately stipulated that it would not require members of the press or legal observers to disperse, and explained that the Federal Defendants did not assert the authority to issue general dispersal orders to clear city streets and that the statutory authority the Federal Defendants relied upon did not so provide. The Supreme Court held that: “It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” (Branzburg v. Hayes, at 684) As such, the Defendants argue that the Plaintiffs are attempting to violate the traditional “nondiscrimination” interpretation of the Press Clause of the First Amendment. The Court held that the lack of requested modifications by the City, as well as the expert testimony by Mr. Kerlikowske, demonstrates that “it is workable and feasible to disperse protesters generally but not require the dispersal of journalists and authorized legal observers.” [p. 45] Furthermore, any “incidental exposure of journalists and legal observers to crowd control devices is not a violation of the injunction.” [p. 45] Nor does the preliminary injunction protect anyone who disguises themselves as the press to commit unlawful acts. Seattle, WA. Nor did the Court find that any change in enforcement tactics indicate “any clear or codified procedures.” [p. 32]. The district court entered a TRO against the Federal Defendants on July 23, 2020. [p. 3] The Plaintiffs further alleged that these agents have not received special training in civilian crowd control. Justice Simon rejected the Defendants’ argument that the Plaintiffs were seeking greater rights than the public generally. There have been incidents of vandalism, destruction of property, looting, arson, and assault, particularly late at night. On appeal, a divided three-judge motions panel issued an order on August 27 granting the Federal Defendants' motion for an administrative stay of the injunction pending resolution of their emergency motion for a stay pending appeal. The district court's order began by observing that the Constitution reserves the general police power to the states, and pursuant to the general police power, local officials have the authority to issue general dispersal orders on the public streets and sidewalks. The panel further held that the Federal Defendants have not shown that they are likely to suffer irreparable injury as a result of the district court's preliminary injunction. Nevertheless, the district court was confronted with compelling photographic evidence showing that federal officers "routinely have left federal property and engaged in crowd control and other enforcement on the streets, sidewalks and parks of the City of Portland." 2006)) Under the first factor, the Plaintiffs’ “constitutionally protected activity” was “newsgathering, documenting, and recording government conduct.” [p. 34] (Leigh, 677 F.3d at 898) This was undisputed by the Defendants. All of these Plaintiffs were in attendance at the George Floyd protests in Portland, wore items that identified their “press” qualifications and experienced violence from federal authorities. The court's order detailed several of the dozens of declarations, photos, and video clips introduced into evidence to support plaintiffs' contention that at least some of the federal officers had intentionally targeted journalists and legal observers in retaliation for their news-reporting efforts.
The Federal Defendants also failed to demonstrate they are likely to suffer irreparable injury if the preliminary injunction is not stayed pending appeal. O'SCANNLAIN, J., dissenting: United States Courts of Appeals, Court of Appeals for the Ninth Circuit. [p. 25].
Because the Federal Defendants argued that some protestors had masqueraded as members of the press by wearing press badges or clothing identifying them as members of the press corps, the order provides that it does not protect unlawful conduct and that anyone, even a person who appears to be a journalist, is subject to arrest for engaging in such conduct. This case arises out of the protests in Portland, Oregon. [p. 9, Ibid]. The Plaintiffs in this case are Index Newspapers LLC, a bi-weekly newspaper and media company based in Portland, Oregon. On May 25, 2020, George Floyd was killed by a Minneapolis police officer while being arrested. Dist. Justice Simon applied these facts to “the factors that are important in predicting the likelihood of future violations”, set out in Fed. The dissenting court of appeals judge was Margaret McKeown, a Bill Clinton appointee. Many of the protests in Portland have centered around the Mark O. Hatfield Federal Courthouse. The Index was published in Hermitage, Missouri and with 26,579 searchable pages from . [p. 58], Further, the Journalists and Legal Observers are not required to disperse following the issuance of a dispersal order. On July 28, the Plaintiffs filed a motion to hold the Federal Defendants in contempt. In their submission, the Plaintiffs claim that these violations are not inadvertent, but the “intentional acts by a lawless president, who has sent his paramilitary forces to shoot up the streets of Portland, choke downtown in a haze of toxic chemical fumes, and generate reelection soundbites – in blatant disdain for public safety, the rule of law, and the most fundamental principles of our Constitution.” [p. 7, Plaintiffs’ Motion for Contempt & Sanctions Against Federal Defendants] The Plaintiffs cited ten occasions in which journalists and legal observers were assaulted by federal agents, despite being clearly identified as such and engaging in no unlawful conduct. However, DHS appealed and the majority opinion of the Court of Appeals found that an exemption for “Journalists” and “Legal Observers” from dispersal orders was “without legal basis.” The Court of Appeals further criticised the order’s “breadth and lack of clarity,” which risked causing “irreparable harm to law enforcement efforts and personnel.”. The Defendants claim that this case only refers to the right of access to judicial proceedings. The dissenting opinion was delivered by Justice Margaret McKeown. This complaint alleged that the Federal Defendants, "intentionally targeted and used physical force and other forms of intimidation against journalists and authorized legal observers for the purpose of preventing or deterring them from observing and reporting on unreasonably aggressive treatment of lawful protestors.". See Also. Secondly, if the Court finds that the right applies, the government can only overcome this right by demonstrating “an overriding interest” that “closure is essential to preserve higher values and is narrowly tailored to serve that interest.” [p. 43] (Press-Enterprise II, 478 U.S. at 9) Applying this test, the Court noted that public streets have historically been open to the press and that journalistic reporting on law enforcement activities has a “significant positive role in ensuring conduct remains consistent with the Constitution.” [p 43]. The Federal Defendants, however, asserted that persons wearing the indicia of press were engaged in violent and unlawful conduct. In response, the Plaintiffs submitted two declarations from Mr. Gil Kerlikowske, a “qualified, credible, and persuasive expert witness” in law enforcement. The District Court had issued a preliminary injunction in recognition of a significant public interest in upholding the Plaintiffs’ First Amendment right to observe government conduct during protests. 91, 94 (2018): “The nondiscrimination view of the Press Clause is deeply flawed for the simple reason that the press is different and has always been recognized as such.” Indeed, “Barring the government from recognizing the differences between press and non-press speakers threatens to undermine the vital role of the Fourth Estate.” [p. 5], Legal Standard for a Preliminary Injunction, Justice Simon firstly noted that a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. INDEX NEWSPAPERS LLC, DBA Portland Mercury; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU, and those similarly situated, Plaintiffs-Appellees, v. UNITED STATES MARSHALS SERVICE; U.S. DEPARTMENT OF HOMELAND SECURITY, Defendants-Appellants, and CIT... Before: O'SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges. The panel held that the Federal Defendants have not made a strong showing that their standing argument is likely to succeed. The other individual Plaintiffs include journalists, a freelance photographer, volunteer legal observers, an independent attorney and a student of journalism. On June 28, 2020, the Plaintiffs filed their original complaint against the city of Oregon. The Court further denied the Federal Defendants’ motion for reconsideration of the TRO. Four days after the complaint was filed, on July 2, the district court entered a temporary restraining order (TRO) against the City regulating the local authorities' use of crowd-control tactics against journalists and legal observers. There have been incidents of vandalism, destruction of property, looting, arson, and assault, particularly late at night. US Court of Appeals for the Ninth Circuit. 2016)) Accordingly, Justice Simon held that the Plaintiffs had demonstrated at least “serious questions” concerning the Federal Defendants’ First Amendment “retaliatory intent.”, The Court proceeded to consider the second claim: the right of access to public streets and sidewalks.


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