Index Newspapers et al. v. United States Marshals Service et al.

Court: U.S. Court of Appeals for the Ninth Circuit

Date Filed: Sept. 2, 2020

Update: On Oct. 9, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit reinstated an injunction barring federal agents from targeting journalists for assault and arrest during protests while the Circuit considers the government’s appeal. The Reporters Committee and 60 news media organizations filed another friend-of-the-court brief in this case with the Ninth Circuit on Nov. 23 in support of the injunction. The brief argues that dispersal orders must be narrowly tailored to accommodate newsgathering and cannot constitutionally be applied to journalists who have not committed an unlawful act other than failure to disperse.

Background: In June, a class-action lawsuit was filed on behalf of journalists targeted by law enforcement while covering Black Lives Matter protests in Portland, Oregon. The lawsuit, filed against the city of Portland, the U.S. Department of Homeland Security, and the U.S. Marshals Service, specifically accused law enforcement of “intentionally and indiscriminately attacking neutral members of the press and legal observers.”

In August, a federal judge issued a preliminary injunction ordering federal law enforcement to stop arresting, assaulting, threatening, or dispersing journalists and legal observers during demonstrations. The judge also said that federal agents could not search or seize journalists’ equipment.

The federal defendants in the case appealed to the U.S. Court of Appeals for the Ninth Circuit, and filed both a motion for an emergency stay of the judge’s order and a motion for an administrative stay pending resolution of the emergency stay.

In late August, a majority of a Ninth Circuit panel granted the defendants’ motion for a temporary administrative stay while it decides the motion for an emergency stay. The panel majority stated that the defendants presented a “strong showing of likely success on the merits that the district court’s injunction exempting ‘Journalists’ and ‘Legal Observers’ from generally applicable dispersal orders is without adequate legal basis.”

Our Position: The Ninth Circuit panel should deny the government’s request for an emergency stay of the district court’s order.

• The district court’s order is an appropriately tailored measure to safeguard the First Amendment rights of the news media.
• There is an overriding public interest in ensuring continued reporting on protests in Portland that the preliminary injunction protects.

Quote: “Rigorous protection for the newsgathering rights of journalists covering protests is not only compelled by the First Amendment, it is essential if the press is to fulfill its constitutional obligation to ensure the government is accountable to the people.”

Related: In August, the Reporters Committee and 16 media organizations filed a friend-of-the-court brief in this case, urging the district court not to require journalists covering protests to register or obtain a license with the government, American Civil Liberties Union, or any other organization. The media coalition’s brief came after U.S. District Judge Michael H. Simon asked the parties whether the court should restrict legal protections to “professional” or “authorized” journalists who would be clearly identifiable by wearing vests provided by the ACLU. During an Aug. 6 hearing, however, Judge Simon thanked the Reporters Committee for its brief in the case, and said he was no longer considering the idea of having journalists obtain credentials from the ACLU.

Nov. 23 brief:

Sept. 2 brief: