Case Summary and Outcome

The United States Court of Appeals for the Ninth Circuit lifted a stay issued on August 27, 2020, reinstating the district court injunction that barred federal agents from dispersing, arresting or using physical force against journalists and legal observers during protests in the city of Portland. The action was brought in June by Index Newspapers LLC and a range of journalists, photographers and legal observers. The Plaintiffs allege that federal agents in the U.S. Department of Homeland Security (DHS) and the U.S. Marshals Service (“Federal Defendants”) targeted journalists and legal observers in violation of their First and Fourth Amendment rights. Overturning the stay against the preliminary injunction, the majority opinion ruled that the Federal Defendants did not show a strong likelihood of success on the merits of the claim. The Court reasoned that, on the basis of the entrenched recognition of the public’s right to protest and the widely accepted importance of the press, the Plaintiffs had demonstrated a likelihood of success on the merits of their First Amendment right-of-access claim. 

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Facts

The Plaintiffs in this case are Index Newspapers LLC, a bi-weekly newspaper and media company based in Portland, Oregon. The other individual Plaintiffs include journalists, a freelance photographer, volunteer legal observers, an independent attorney and a student of journalism. 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 Defendants are the City of Portland, numerous “unnamed individual and supervisory officers of the Portland Police Bureau” (PPB), other agencies working alongside the PPB, the U.S. Department of Homeland Security (DHS), and the U.S. Marshals Service (USMS). The DHS and USMS are collectively referred to as the “Federal Defendants”.

On May 25, 2020, a 46 year-old African American man named George Floyd died after being arrested outside a shop in Minneapolis, Minnesota. The online publication of footage of George Floyd being pinned to the ground by a white police officer for almost nine minutes before he died led to widespread protests across the United States. In the city of Portland, Oregon, neutral observers of the protests, including journalists and lawyers, allegedly faced violent attacks from the Federal Defendants. One such incident occurred on July 15, 2020 when a tear-gas canister was shot directly at photojournalist Justin Yau despite standing 40 feet away from protesters to make it clear that he was not part of the protests. Similarly, photojournalists Jungho Kim and Noah Berger were also shot with lethal ammunition without any warning.

On June 28, 2020, the Plaintiffs filed their original complaint against the city of Oregon. On June 30, the Plaintiffs sought a temporary restraining order and preliminary injunction. The Plaintiffs alleged that intimidation of press by the police officials violated the First and Fourth Amendments of the United States Constitution and Article I, Sections 8 and 26 of the Oregon Constitution. 

On July 2, the district court entered a temporary restraining order (TRO) against the City of Portland regulating the local authorities’ use of crowd-control tactics against journalists and legal observers. On July 16, the City and Plaintiffs stipulated to a preliminary injunction.

On July 17, the Court granted the Plaintiffs’ motion to file a Second Amended Complaint against the Federal Defendants. Many of the protests centered around the Mark O. Hatfield Federal Courthouse. As the Courthouse was federal property, the Federal Defendants deployed federal law enforcement agents to protect the property in Portland. It is “undisputed” that the intensity of the protests escalated after the Federal Defendants arrived. The complaint filed by the Plaintiffs sought to stop the Federal 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.” [p. 2, Temporary Restraining Order Enjoining Federal Defendants]  On July 22, the City of Portland filed a memorandum in support of the Plaintiffs’ motion for a temporary restraining order against the Federal Defendants. 

On July 23, the Court issued a TRO prohibiting federal agents from assaulting and dispersing journalists and legal observers. The Plaintiffs claim that, “within hours” of this judgment, federal agents violated the TRO and continued to do so over the following evenings. 

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. One such incident was the shooting of the reporter Jonathan Levinson by federal agents on July 23, the same night the Court issued the TRO. This occurred when Mr Levinson was wearing an “OPB press pass with his name, his photograph, the OPB logo, and the word ‘MEDIA,’” as well as a helmet with the word “PRESS” in large font on the front and back. [p. 9, Ibid] 

On July 30, in response to the Plaintiffs’ motion to hold the federal agents in contempt, the Defendants moved for reconsideration of the TRO as it is “unworkable” and interferes with their work in the city of Portland, requesting that it be dissolved. 

On August 6, the Court extended the temporary restraining order for an additional 14 days, until August 20, 2020, at 5:00 p.m. The Court further denied the Federal Defendants’ motion for reconsideration of the TRO. 

On August 27, the Ninth Circuit Court of Appeal granted a temporary administrative stay on the preliminary injunction enacted by the District Court of Oregon. 

On October 9, the United States Court of Appeals lifted the temporary administrative stay, reinstating the district court injunction that barred federal agents from assaulting or dispersing journalists and legal observers. 

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Decision Overview

District Court of Oregon (Delivered 20 August 2020)

District Judge Michael H. Simon delivered the opinion of the District Court of Oregon. 

The matter before the Court was whether or not to grant the Plaintiffs’ motion for a preliminary injunction against the two Federal Defendants: the U.S. Department of Homeland Security (DHS) and the U.S. Marshals Service (USMS). A preliminary injunction would extend the temporary restraining order that had been issued by the Court on July 23 and extended until August 20. 

Justice Simon began his judgment by setting out the significant First Amendment implications of this case. Referencing Leigh v. Salazar, 677 F.3d 892, 897 (9th Cir. 2012), Judge Simon questioned whether the principle that the “free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press” still stands or is “merely hollow words.” [p. 2, Opinion and Order Granting Preliminary Injunction] 

The Plaintiffs submitted that agents of the Federal Defendants across the United States, particularly those stationed in the city of Portland, Oregon to protect the federal Courthouse, “repeatedly targeted and used physical force against journalists and authorized legal observers” documenting the Black Lives Matter protests. [p. 3] The Plaintiffs further alleged that these agents have not received special training in civilian crowd control. 

The Federal Defendants argued that they are merely protecting the federal courthouse from violent attacks and any interference with the Plaintiffs’ First Amendment right is “merely incidental.” The Defendants further argued that the Plaintiffs are seeking “special protections for journalists and legal observers under the First Amendment” but that they are entitled to “no greater rights than those afforded to the public generally.” [p. 4] In support of this submission, the Defendants referenced Branzburg v. Hayes, 408 U.S. 665, 680-82 (1972), which held that the First Amendment protection for news gathering does not provide a defense to reporters summoned before a grand jury. 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. 

Justice Simon rejected the Defendants’ argument that the Plaintiffs were seeking greater rights than the public generally. The Federal Defendants themselves do not have the authority to declare a riot and order a dispersal of the city streets; it is only state and local law enforcement that may do so. The Plaintiffs and the City had already stipulated to a preliminary injunction that provides that the Portland Police will not arrest or enforce a dispersal order against journalists or legal observers. As such, the matter of whether journalists and legal observers acting lawfully have a First Amendment right not to abide by a dispersal order issued by state or local authorities did not arise before the Court. However, while the Court did not dismiss this traditional interpretation of the Press Clause, Justice Simon noted that it “may be undergoing a reevaluation”, citing Sonja R. West, Favoring the Press, 106 CAL. L. REV. 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. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008) Applying Winter, to be granted a preliminary injunction, the plaintiff must prove that: “(1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest.” [p. 7] There is also the “serious questions” test, under which a preliminary injunction may be granted “if there is a likelihood of irreparable injury to the plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” [p. 7] (MR. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012))

Temporary Restraining Order 

On July 23, the Court issued a temporary restraining order against the Federal Defendants. In his opinion and order, Justice Simon set out the continued assaults experienced by the Plaintiffs following the issuance of the TRO. The Court referenced an assault that took place on July 24 against the Plaintiff and journalist Brian Conley. Federal agents launched tear gas into a street of “mostly press and a few individual protesters.” [p. 17] Despite yelling that he was press to avoid being tear gassed again, federal agents shot Mr. Conley with impact munitions in the chest and foot and threw a flashbang grenade at him. Mr. Conley could “barely walk” following the assault. Video footage of the event reveals that Mr. Conley was not standing near any protesters at the time of the incident. Several similar assaults were detailed by the Court. In response, the Federal Defendants argued that the press intermingled with protesters engaged in unlawful conduct. The Defendants also submitted videos purporting to show unlawful conduct by individuals with indicia of the press. Of these videos, the Court only recognised two in which persons wrongfully identified themselves as members of the press, neither of which involved acts of violence. 

The Federal Defendants, however, asserted that persons wearing the indicia of press were engaged in violent and unlawful conduct. Of several videos submitted to the Court, Justice Simon recognised only two in which individuals who were not the press were identified as such. 

The Federal Defendants argued that the TRO was unsafe and unworkable. In response, the Plaintiffs submitted two declarations from Mr. Gil Kerlikowske, a “qualified, credible, and persuasive expert witness” in law enforcement. [p. 23] Mr. Kerlikowske stated that the prohibitions within the TRO are both safe and workable for law enforcement personnel as defending the federal courthouse did not require the agents to target or disperse journalists. Any difficulties in abiding by the TRO, Mr. Kerlikowske argued, would be due to their “lack of training, experience, and leadership with experience in civil disturbances and unrest.” [p. 24] Thirdly, Mr. Kerliowske testified that “virtually all the injuries suffered by the complaining journalists were the result of improper use of force.” [p. 24] Finally, Mr. Kerlikowske submitted that “camouflage uniforms are inappropriate for urban settings” and that it is the duty of law enforcement to be easily identifiable. [p. 25]

Standing

The Court next considered the Federal Defendants claim that the Plaintiffs lacked the necessary legal standing to request injunctive relief, relying on the same arguments that they made during the TRO. In issuing the TRO on July 23, the Court rejected the Federal Defendants’ arguments regarding standing.

The Defendants had previously submitted that the Plaintiffs lacked this standing as they relied on past illegal conduct and have access to other available legal remedies. They also argued that their actions against the Plaintiffs were “necessary to protect federal property.” [p. 10-11, Temporary Restraining Order Enjoining Federal Defendants] 

To establish a standing for prospective injunctive relief, the plaintiff must “allege either ‘continuing, present adverse effects”‘ of the defendant’s past illegal conduct, “or ‘a sufficient likelihood that [they] will again be wronged in a similar way.”‘ [p. 9, Temporary Restraining Order Enjoining Federal Defendants] (Villa v. Maricopa Cty., 865 F.3d 1224, 1229 (9th Cir. 2017)) A single past injury does not amount to a legal standing. However, the threat of future injury is sufficient when “actual repeated incidents are documented.” [p. 10, Temporary Restraining Order Enjoining Federal Defendants] (Thomas v. Cty. of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992))

Applying these legal principles during the TRO, the Court noted that the Plaintiffs were all reporting on or observing the protests and experienced “violence, threats, or intimidation by federal agents.” [p. 10, Temporary Restraining Order Enjoining Federal Defendants] Judge Simon referred to several examples in which federal agents had “thrown flashbang grenades at Plaintiff Tracy, shot smoke grenades at Plaintiff Mahoney, and shot Plaintiff Rudoff with a 40mm rubber bullet.” [p. 10, Temporary Restraining Order Enjoining Federal Defendants] Furthermore, the Plaintiffs intended to continue to observe and report on the ongoing protests, while the Federal Defendants intended to continue “dispersing” journalists and legal observers. The Court held that the violent actions of the Federal Defendants experienced by the Plaintiffs amounted to a “pattern of officially sanctioned conduct.” [p. 10, Temporary Restraining Order Enjoining Federal Defendants] Accordingly, without an injunction, the Court determined that the Federal Defendants will continue to target journalists and legal observers, requiring them to either disperse or “face force and violence.” As such, the threat of future harm is neither speculative nor hypothetical. The pattern of previous conduct by the Defendants and the intentions of both the Plaintiffs and the Defendants amount to a “real and immediate threat of repeated injury”, thereby creating a legal standing. [p. 11, Temporary Restraining Order Enjoining Federal Defendants] (City of L.A. v. Lyons, 461 U.S. 102 (1983))

The Court additionally dismissed the arguments submitted by the Federal Defendants. The Court found that it would be unreasonable for the Defendants to require the Plaintiffs to forgo constitutionally protected conduct in order to avoid violent confrontations with government forces. The Court also rejected the Defendants’ submission that the Plaintiffs had access to alternative legal remedies, including a civil rights action or lawsuit under the Federal Tort Claims Act. Judge Simon found that “backwards-looking” remedies such as claims for damages do not offer the relief sought by the Plaintiffs in exercising their First Amendment rights. The Court recognised the impact that the Defendants’ conduct had in preventing the Plaintiffs from exercising this right, either due to recovery time from injuries or the “chilling effect” wherein some Plaintiffs may no longer report on the protests in order to avoid future violence from federal agents. 

The Federal Defendants’ request for reconsideration of this decision during the hearing for a preliminary injunction was also rejected by the Court. Justice Simon found that they had provided “no compelling basis for the Court to modify its previous determination.” [p. 29] 

The Federal Defendants further submit that the standing must be proven at “successive stages of the litigation”. This argument was also rejected by the Court, which noted that “standing is evaluated by considering the facts as they existed at the time of the commencement of the action.” [p. 29] (Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)) Furthermore, any voluntary change in enforcement tactics made by federal agents in the interim, such as the lack of recent engagement in crowd control, does not moot the Plaintiffs’ claims. Nor did the Court find that any change in enforcement tactics indicate “any clear or codified procedures.” [p. 32] 

Accordingly, the Court affirmed their earlier decision to find that the Plaintiffs have standing to request injunctive relief. 

Temporary Restraining Order Elements

1. Likelihood of success on the merits

The Plaintiffs alleged both a First Amendment retaliation and a violation of their First Amendment right of access. To acquire a preliminary injunction, the Plaintiffs must demonstrate that they are likely to succeed on the merits of at least one of the two claims. The Court found that the Plaintiffs satisfied this requirement. 

The Court began by considering the merits of a claim of First Amendment Retaliation. To establish this claim, the Plaintiffs must show that: “(1) they were engaged in a constitutionally protected activity; (2) the Federal Defendants’ actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial or motivating factor in the Federal Defendants’ conduct.” [p. 33-34] (Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 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. Under the second factor, the Plaintiffs argued they have a “continuing fear of future physical force or threat by the Federal Defendants.” [p. 34] The Defendants’ claim that this was “subjective and insufficient” was rejected by the Court. Justice Simon noted that “ordinary firmness” is an objective standard that will not “allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity.” [p. 34] (Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)) The Court noted that, in declarations submitted before and after the TRO, several journalists were unable to continue to report due to injury or “decided never to return because of fear for their personal safety.” [p 36] Justice Simon further commented that “the fact that there are some violent offenders, however, does not give the Federal Defendants carte blanche to attack journalists and legal observers and infringe their First Amendment rights.” [p. 36] Under the third factor, the Federal Defendants submitted that the Plaintiffs failed to demonstrate that the “protected activity was a substantial or motivating factor in any purported conduct.” [p. 37] Rather, the Defendants claimed that the Plaintiffs were “inadvertently” hit due to a proximity to protesters. This argument was also rejected by the Court, which pointed to video evidence in which pepper spray was “intentionally directed at close range into the faces and eyes of the journalists or legal observers.” [p. 38] The Federal Defendants also pointed to their formal policy of support for the First Amendment, arguing that the Plaintiffs failed to demonstrate otherwise. This too was rejected by the Court, which held that a formal policy is insufficient to protect the Defendants “if in practice they do not conform to that policy.” [p. 40] (Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 n.10 (9th Cir. 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. Justice Simon firstly set out that “the Supreme Court has long recognized a qualified right of access for the press and public to observe government activities.” [p. 41] (Leigh, 677 F.3d at 898.) Indeed, the media act as “surrogates for the public” by reporting on government conduct. (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)) The Federal Defendants argued that journalists do not have the right to “stay, observe, and document” when public streets have been closed by the government. The Court rejected this argument as it is the local police, not federal agents, who hold the authority to “close” state and local public areas.  Secondly, the Court held that it is the role of journalists to record whether government action in closing public streets is lawful. Thirdly, as conceded by the Defendants, there is no evidence that any journalist or legal observer committed any illegal conduct, such as damaging federal property or harming a federal officer. As such, the need to protect federal property and the safety of federal officers is not impacted by permitting journalists and legal observers to remain. The Court also rejected the Defendants’ submission that the Plaintiffs improperly rely on Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) as the standard to apply when evaluating the likelihood success in a right of access claim. The Defendants claim that this case only refers to the right of access to judicial proceedings. The Court determined that this had been rejected by the Ninth Circuit, which applies Press-Enterprise II to journalists requesting access to cover a government event, in that instance: a horse roundup. As such, the Court held that Press-Enterprise II applies. Press-Enterprise II established a two-part test for right of access claims: firstly, the Court must determine whether the place has historically been open to the press and whether public access has an important role in the process in question. 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 Court next considered The Federal Defendants assertion that the preliminary injunction is “unworkable.” The Court recognised the Federal Defendants’ “strong government interest” in protecting federal property, yet held that did not permit an unreasonable burden upon First Amendment rights. Furthermore, the Court pointed to the stipulated preliminary injunction between the City of Portland and the Plaintiffs as evidence that the “exempting journalists and legal observers is workable.” [p. 44] After issuing the first TRO against the City, a subsequent preliminary injunction was “nearly identical” to the original TRO, which did not require journalists and authorized legal observers to disperse. 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. Finally, the Court rejected the Federal Defendants’ concern about the workability of “larger unique identifying markings” for federal officers, holding that the “current identifying markings are not of sufficient visibility.” [p. 46] Accordingly, the Plaintiffs’ were successful in alleging at least serious questions regarding a violation of their right to access.  

2. Irreparable Harm 

The second element for a preliminary injunction requires that the Plaintiffs are “likely to suffer irreparable harm in the absence of preliminary relief.” [p 47] (Winter, 555 U.S. at 20) 

The Federal Defendants argued that the Plaintiffs face no threat of immediate injury, particularly due to the changes made to their enforcement tactics. The Defendants further claimed that the Plaintiffs failed to demonstrate that the “chances of encountering a federal officer at a protest is higher in August 2020 than it was in August 2019 or August 2018.” [p. 47] The Court rejected this argument, pointing to the federal agents insufficient leadership and experience, as well as their continued presence in the city. Having already found that there was irreparable harm in support of the TRO, the Court noted that the Plaintiffs had provided even more evidence that the journalists’ First Amendment rights had been chilled. The only difference between the TRO and the preliminary injunction was the voluntary cessation of particular enforcement tactics. However, the Court determined that there is “no indication” crowd control policies would change if the Defendants re-engaged with protesters without injunctive relief in place. Any voluntary cessation of particular crowd control tactics was not found to indicate “effective discontinuance and serious questions remain with respect to the likelihood of Plaintiffs’ future injury.” [p. 53] Additionally, the Court questioned whether the Federal Defendants had actually “fully complied with the Court’s original TRO.” [p. 51] As indicated in the Plaintiffs’ motion for contempt, filed on 28 July, the Federal Defendants “appear to have engaged in at least some conduct that continues to target journalists and legal observers in violation of the Court’s TRO.” [p. 54] The Court expressed concern that this would suggest a continuation of “improper conduct” if there were no injunction in place. Finally, the Court noted the “particularly egregious” nature of recent violations by federal agents in Portland. 

Justice Simon applied these facts to “the factors that are important in predicting the likelihood of future violations”, set out in Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1263 n.5 (9th Cir. 1989). [p. 53] These factors include the “degree of scienter involved; the isolated or recurrent nature of the infraction; the defendant’s recognition of the wrongful nature of his conduct,” among others. [p. 53] The Court found that, firstly, the Federal Defendants’ previous violations are “highly suggestive” of future harm. Secondly, there is a high “degree of scienter involved” for violations that relate to targeting journalists and legal observers, rather than mere incidental harm. Thirdly, the incidents were not isolated but widespread. Fourth, the Federal Defendants failed to concede to the “wrongful nature” of their conduct or applied any disciplinary measures. Fifth, the “professional and personal characteristics” of the Federal Defendants suggest a high degree of likelihood of future violations. Finally, any assurances against future violations were not found to be “sincere” by the court. 

Accordingly, the Court found that the Plaintiffs sufficiently demonstrated that future violations by the Federal Defendants would cause irreparable injury. 

3. Public Interest and Balance of the Equities

When the government is a party, the questions of public interest and balancing equities merge. (Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)) Concerning public interest, Justice Simon noted that “Courts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.” [p. 55] (Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012)) Regarding balancing the equities, Justice Simon noted that if a plaintiff has “raised serious First Amendment questions,” the balance of hardships “tips sharply in [the plaintiffs’] favor.” [p. 55] (Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007)) 

The Federal Defendants argued that the governments’ interests in protecting federal property, ensuing the safety of their agents and maintaining public order outweigh the Plaintiffs’ First Amendment concerns. Despite the Defendants’ submission that individuals identifying themselves as “press” engaged in unlawful conduct, the Court found that evidence in support of this claim was either “ambiguous” or did not indicate “unlawful conduct.” Furthermore, any individuals identifying themselves as “press” who are engaged in unlawful conduct are not protected by the preliminary injunction. In addition, the preliminary injunction expressly notes that an “indicia of press or authorized legal observer status is that they stay to the side and do not intermix with protesters” and prohibits interference with law enforcement. [p. 57] Balancing the equities and public interest, the Court held that the unlawful actions of a few people does not outweigh the important First Amendment rights of journalists and legal observers and the “public for whom they act as surrogates.” [p. 57] 

The final argument offered by the Federal Defendants emphasized the government’s interest in maintaining physical access to the court. The Court rejected this claim, noting that the protests occur after business hours and would not be restricted by allowing journalists and legal observers to remain despite a general dispersal order. 

Accordingly, the public interest in receiving accurate reporting about the protests and the response of law enforcement to them was held to outweigh any of the government’s proffered interests. 

Conclusion

The Court therefore granted the Plaintiffs’ motion for a preliminary injunction against the Defendants. 

This order held that: “The Federal Defendants, their agents and employees, and all persons acting under their direction are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer,” unless there is probable cause that they have committed a crime. [p. 58]

Further, the Journalists and Legal Observers are not required to disperse following the issuance of a dispersal order. The Journalists are mandated to carry a professional or authorized press pass/badge or official press credentials or distinctive clothing that identifies them as a member of the press. Similarly, the Legal Observers are required to wear a green National Lawyers’ Guild authorized NLG hat or blue ACLU issued vest. The Federal Defendants will also not be subject to qualified immunity in any action brought against them. [p. 60]

On 21 August, the United States Marshal Service and the United States Department of Homeland Security were granted a motion to appeal the Preliminary Injunction to the United States Court of Appeal. 

Court of Appeals for the Ninth Circuit (Delivered 27 August 2020)

Circuit judges Eric Miller and Daniel Press delivered the majority opinion of the panel. 

Justices Miller and Press held that the injunction imposed by the District Court to exempt “Journalists” and “Legal Observers” from dispersal orders is “without adequate legal basis.” [p. 2, Decision by the Ninth Circuit] The Ninth Circuit also criticised the “breadth” and lack of “clarity” of the injunction, particularly concerning the identification of “Journalists” and “Legal Observers.” [p. 2, Decision by the Ninth Circuit] Without enforcing a temporary administrative stay, the Justices determined that the injunction would cause “irreparable harm to law enforcement efforts and personnel.” [p. 2, Decision by the Ninth Circuit] 

The dissenting opinion was delivered by Justice Margaret McKeown. Opposing her fellow panel members, Justice McKeown held that the Justice Department had failed to demonstrate either an “emergency or irreparable harm to support am immediate administrative stay.” [p. 3, Decision by the Ninth Circuit] Justice McKeown noted that the factual conclusions supporting the preliminary injunction had already been reviewed for “clear error.” (See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)) As the Court of Appeal adopts a “deferential review” to the District Court’s “extensive factual finings”, and the temporary restraining order had already been in place since July 23, without any apparent irreparable harm, Justice McKeown opposed an immediate administrative stay. 

Court of Appeals for the Ninth Circuit (Delivered 9 October 2020)

Circuit judges Johnnie B. Rawlinson and Morgan Christen delivered the majority opinion of the panel. The main issue before the Court was whether or not to grant the Federal Defendants’ motion for a stay of the Plaintiffs’ injunction pending appeal.

At the outset, the Court noted that “a stay is not a matter of right, even if irreparable injury might otherwise result to the appellant.” (Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)) [p. 8] Furthermore, “the party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” (Nken v. Holder, 556 U.S. 418, 433–434 (2009)) [p. 8]

To determine whether or not to grant the Federal Defendants’ motion for a stay pending appeal, the court considered: “(1) whether the Federal Defendants have made a strong showing that they are likely to succeed on the merits; (2) whether the Federal Defendants will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” (Nken v. Holder, 556 U.S. 418, 426 (2009)) [p. 9] The first two Nken factors are the most critical; the second two are only considered once these have been satisfied. 

The Federal Defendants argue that they are likely to succeed on the merits of their claims for three reasons. Firstly, they submit that the Plaintiffs lack standing to pursue injunctive relief as they have not shown a sufficient likelihood that they will be deprived of their First Amendment rights without the injunction against the Federal Defendants’ crowd control measures. Secondly, they reject the District Court’s conclusion that the Plaintiffs’ protected activity was a “substantial or motivating factor” for the Federal Defendants to disperse them. Thirdly, they argue that the press and legal observers do not have a First Amendment right of access to the streets and sidewalks of protests if there has been a dispersal order. 

The Court rejected the Federal Defendants first submission: that the Plaintiffs have not shown a sufficient likelihood that they will be deprived of their First Amendment rights. The Federal Defendants’ first argument relied on Lyons, in which the Supreme Court found that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” (City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)) [p. 12] However, the Court distinguished between Lyons and the present case, primarily, as the risk of future injury was not speculative but an “ongoing, sustained pattern of conduct.” [p. 13] Having concluded that the Federal Defendants chilled the Plaintiffs’ First Amendment rights, the district court issued a lengthy order, supported by factual findings unchallenged by the Federal Defendants. The Court Court of Appeal concluded that the Federal Defendants had not demonstrated that their standing argument was likely to succeed, nor had they shown that the district court abused its discretion by entering a preliminary injunction. 

The Court subsequently found that the Federal Defendants had not demonstrated that they were likely to succeed on the merits of the Plaintiffs’ First Amendment retaliation claim. For this claim, the Plaintiffs must show that they were engaged in a constitutionally protected activity, the Federal Defendants’ actions would “chill a person of ordinary firmness from continuing to engage in the protected activity”, and the protected activity was a “substantial or motivating factor” in the Federal Defendants’ conduct. (Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)) [p. 16] The Federal Defendants did not contest the first two elements; rather, they argued that the First Amendment activity was not a “substantial or motivating factor” in their conduct. In reliance on the district court’s “extensive and thorough factual findings”, the Court of Appeals affirmed the lower court’s conclusion that the Plaintiffs’ exercise of their First Amendment right was a “substantial or motivating factor” in the Federal Defendants’ conduct. The evidence of “retaliatory conduct” by the Federal Defendants did not support the emergency motion for a stay pending appeal. 

Furthermore, the Court of Appeals found that the Federal Defendants had not shown that they were likely to succeed on the merits of the Plaintiffs’ First Amendment right-of-access claim. Judges Rawlinson and Christen firstly rejected the Federal Defendants’ mischaracterization of the preliminary injunction as a “special, across-the-board exemption for members of the press and legal observers.” [p. 20] Rather, the question at hand was whether the Plaintiffs have a “constitutionally protected right to access the public forum where the protests are staged.” [p. 21] The Court applied the test set out in Press-Enterprise II to determine whether a member of the public has a First Amendment right of access under the specific circumstances. Noting that the Plaintiffs had not argued that their occupation provided them with a special right of access not available to the public, the Court acknowledged that Press-Enterprise II test does not vary according to the Plaintiffs’ occupation. Rather, the Court supported the Plaintiffs’ submission that the press has at least the same right of access as the wider public, and certainly not a lesser right. (Pell v. Procunier, 417 U.S. 817, 833–34 (1974)) [p. 22] Considering this right of access, the Court determined that public demonstrations and protests are “clearly” protected by the First Amendment. (Snyder v. Phelps, 562 U.S. 443, (2011)) [p. 23] In view of the entrenched recognition of the public’s right to protest, circuit precedent establishing the right to film public police conduct, and the widely accepted recognition of the important role played by the press, the Court of Appeal supported the district court’s conclusion in support of the Plaintiffs’ First Amendment right-of-access claim. The Court further rejected the Federal Defendants’ argument that dispersing the press was either essential or narrowly tailored to serving the government’s interest in protecting federal property. 

The dissent (below) criticises the majority opinion for deferring to the district court’s findings. In response, Judges Rawlinson and Christen note that deference is “precisely what our precedent requires.” (Walters v. Reno, 145 F.3d 1047 (9th Cir. 1998)) [p. 32] Rather than “second-guess” the factual findings of the district court, it is the Court of Appeals’ to find “clear error”, which they did not. The majority criticises the dissent for reviewing the facts “de novo”, reframing the protests as “riots” and Judge O’Scannlain’s broad conclusion that Federal Defendants may disperse crowds “without limit.” Rather, the majority opinion recognises that the majority of protests were peaceful and that the Plaintiffs were often targeted when at a distance from the protests. 

The Court proceeded to consider the second Nken factor: whether the Federal Defendants have demonstrated that they will suffer irreparable injury if the district court’s preliminary injunction is not stayed pending appeal. The Federal Defendants’ argued that they will face irreparable injury without a stay as the preliminary injunction will restrict their ability to protect federal property and put them in a position of choosing between risking their safety or violating the injunction. Judges Rawlinson and Christen concurred with the district court ruling, finding that the terms of the injunction adequately addressed the Plaintiffs’ concerns. Furthermore, the Plaintiffs’ claim that the injunction is unworkable is undermined by the City’s agreement to operate pursuant to a similar order. 

Having established that the Federal Defendants had not satisfied the first two Nken factors, the Court briefly noted that the final two factors further support a denial of the Federal Defendants’ motion. The third Nken factor questions whether the “other parties to the litigation will be substantially injured if the district court’s preliminary injunction is stayed pending appeal.” (Nken, 556 U.S. at 426) [p. 41] The district court had highlighted evidence of mounting tension and violence following the arrival of the Federal Defendants, as well as evidence of the intentional targeting of journalists or legal observers. This conduct chilled the exercise of the Plaintiffs’ First Amendment rights. The Court found that the Federal Defendants failed to show that the Plaintiffs will not be substantially injured if the district court’s preliminary injunction is stayed pending appeal.

The fourth Nken factor questions where the public interest lies. (Nken, 556 U.S. at 435) [p. 42] The Federal Defendants claim that the preliminary injunction challenges their ability to safely protect federal property and personnel. The Plaintiffs, however, assert that: “It is always in the public interest to prevent the violation of a party’s constitutional rights.” (Padilla v. Immigration & Customs Enforcement, 953 F.3d at 1147–48) [p. 43] In balancing the public interests, courts have “consistently recognized the significant public interest in upholding First Amendment principles.” (Assoc. Press v. Otter, 682 F.3d at 826) [p. 43] The Court recognised the significant public interest of the Federal Defendants, yet determined that it did not require dispersing Plaintiffs. The Plaintiffs were not a threat to federal property and provide a vital service to the public in their reporting. 

The Court of Appeals concluded that the Federal Defendants had failed to demonstrate a likelihood to succeed on the merits of the Plaintiffs’ claims. Nor did the Court find that the Federal Defendants likely to suffer irreparable injury from the injunction. Furthermore, a stay of the district court’s injunction would injure both the City of Portland and the Plaintiffs. Accordingly, Judges Rawlinson and Christen denied the Federal Agents’ emergency motion for a stay pending appeal and the administrative stay entered on August 27, 2020 was lifted.

Dissenting Opinion

The dissenting opinion was delivered by Judge Diarmuid O’Scannlain. Opposing his fellow panel members, Justice O’Scannlain criticised the “transformation” of the First-Amendment based “right of public access” to governmental proceedings into a “special privilege for self-proclaimed journalists and ‘legal observers’ to disregard crowd dispersal orders issued by federal law enforcement officers.” [p. 1, Dissenting opinion] Justice O’Scannlain found the majority decision to be a “mutation of a very limited historical right reinforced by millennium of legal tradition into a broad, amorphous entitlement that finds support nowhere in our precedents or in the historical sources of the First Amendment.” [p. 2, Dissenting opinion] In agreement with the majority findings, Justice O’Scannlain held that the factual findings of the district court “reveal quite a disturbing pattern of apparent misconduct by certain federal officers.” [p. 2, Dissenting opinion] 

Rather than relying on the factual findings collected by the district court, Justice O’Scannlain re-framed the facts in order to reveal the “full picture” of the Federal Defendants’ alleged misconduct. Unlike the majority opinion’s description of mostly peaceful protests, Justice O’Scannlain emphasised the “violent and destructive” behavior of rioters. In this context, Justice O’Scannlain did not find the Federal Defendants’ actions to be sufficient grounds to grant journalists and legal observers a “unique exemption from lawful dispersal orders.” [p. 2, Dissenting opinion] 

Furthermore, Justice O’Scannlain rejected the district court’s reliance on Press-Enterprise II to evaluate “claim[s] of a First Amendment right of access to criminal proceedings.” (478 U.S. 1, 8-9 (1986)) [p. 12, Dissenting opinion] Rather, Justice O’Scannlain found that the First Amendment-based right of public access has “never been deemed to apply to riot control and crowd dispersal in a public street.” [p. 13, Dissenting opinion] In this case, the Supreme Court only discussed a qualified right of access to specific criminal judicial proceedings, not a broader right of public access. While the courts of appeal have expanded this doctrine beyond its initial application, Justice O’Shannlain found that “protests and resulting riots are simply not governmental proceedings to which a right of public access may be claimed.” [p. 14, Dissenting opinion] Criticising the extension of this right by lower courts “without extensive historical backing”, Justice O’Shannlain recommended that “this doctrinal disorder warrants further review.” [p. 16, Dissenting opinion]  

Even if the right-of-public-access was appropriate, Justice O’Shannlain rejected the analysis as it must apply equally to both the press and the public. (Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 873 n.2 (9th Cir. 2002)) [p. 17, Dissenting opinion] Citing Branzburg v. Hayes, Justice O’Shannlain noted 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, 408 U.S. 665, 684 (1972)) [p. 17, Dissenting opinion] Yet, in this case, the injunction grants “self-identified journalists and ‘legal observers’ a special privilege to disregard dispersal orders with which the general public must comply.” [p. 17, Dissenting opinion] As such, the judgment was found to be at odds with the First Amendment principle that “the media have the same rights as the rest of us.” [p. 18, Dissenting opinion]

Furthermore, Justice O’Shannlain found that the majority failed to sufficiently account for the overriding government interest in defense of federal personnel and property. Under Press-Enterprise II, a presumptive right of public access may be overcome by a government interest if that interest is essential to “preserve higher values” and the means are “narrowly tailored” for that interest. In consideration of the “chaotic and dynamic” protests in Portland, along with the illegal actions of those identifying themselves as press or legal observers, Justice O’Shannlain concluded that the dispersal orders were essential for the defense of federal personnel and property. In support of this finding, Justice O’Shannlain cited several cases in which the government interest was plausibly less immediate with an equally broad restriction on public access. (Dhiab v. Trump, 852 F.3d 1087, 1095 (D.C. Cir. 2017); U.S. v. Index Newspapers LLC, 766 F.3d 1072, 1087 (9th Cir. 2014)) [p. 23, Dissenting opinion]

Finding that the government was likely to succeed in demonstrating that the injunction lacked an adequate legal basis, Justice O’Shannlain dissented from the majority and granted the emergency motion for stay pending appeal.

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