Federal judge suggests ACLU authorize press covering protests

By Rebecca Ellis (OPB)
Portland, Ore. July 31, 2020 8:27 p.m.

Attorneys with the ACLU warned the idea raises First Amendment problems over who qualifies as a journalist.

U.S. District Judge Michael Simon offered two unusual suggestions Friday for how to make a temporary restraining order he issued against the federal government last week work: ACLU-issued blue vests for journalists and large white football jersey-style numbers for federal officers.

Attorneys for both the American Civil Liberties Union of Oregon and the federal government are in agreement: The protections the judge recently granted legal observers and journalists documenting Portland’s racial justice protests are not working as intended.


The ACLU, which had pushed for the restraining order against the U.S. Department of Homeland Security and the U.S. Marshals Service, contends that officers continued to attack and disperse observers and journalists mere hours after U.S. District Judge Michael Simon issued his ruling. They’ve asked the judge to find the federal agencies in contempt.

Attorneys for the federal government, meanwhile, say that the restrictions were impossible to abide by, as wily protesters were donning press gear while waving Molotov cocktails, attempting to blind helicopters and hopping the fence erected around the federal courthouse downtown.

“Officers face an untenable choice of risking contempt sanctions or letting the protests spiral out of control, resulting in danger to individuals and damage to federal property,” read a federal motion filed Thursday, which asked the judge to get rid of the order.

“Meanwhile savvy protesters abuse the TRO to evade lawful orders, impede law enforcement, and perpetrate crimes.”

The motions come as part of a lawsuit filed by the ACLU Oregon, which alleges both local and federal law enforcement have been targeting and attacking journalists during more than two months of nightly protests against police brutality..


During a Friday conference, the judge said he believed it was likely a small group of protesters masquerading as press and a minority of federal officers flouting his orders. He floated two unusual mechanisms to make it easier to identify both parties.

To make it clear who was press, Simon suggested media members could be authorized by the ACLU of Oregon. If authorized, they’d be given blue vests that would make it clear their credentials were ACLU-sanctioned.

Matthew Borden, an attorney working the ACLU on the suit, was quick to object to the judge’s suggestion, saying it raised First Amendment issues over who qualifies as press. Simon responded that he would be open to holding a hearing for anyone who was denied status as a journalist by the civil liberties group.

There were also practical concerns. Borden worried the civil liberties group did not have enough blue vests to outfit the surge of out-of-town journalists who had descended on downtown Portland over the past few weeks.

Simon floated one more attire change: Federal officers who leave the courthouse area could wear large white numbers on their shirts, similar to the ones on football uniforms. Simon suggested eight-inch numbers, white against a dark background.

During the nightly protests, it can be difficult to determine what agency a federal officer works for - much less their identity. Even with footage submitted to the court showing officers potentially violating the judge’s order, attorneys for federal agencies conceded Friday it could be difficult to figure out who they are.

Thus Simon’s suggestion of “visible, unique, identifying codes” for federal officers who step outside of the building. The federal agencies could have logs to match the numbers with the officer’s identity.

“Here’s what I want to find out: If we see some evidence going forward of some clearly occurring violations of the law, is it always going to be — and I’ll just grab a number at random, hypothetically — do we have a number of problems with 30?” he said. “Perhaps we’ll see officers 30, 40, 50 are causing most of the problems.”

Simon is considering extending the temporary restraining order, which expires next Thursday, against the federal agencies. These ideas, which he said he’d want further briefing on, could potentially be part of that extension.