D.Ore.: TRO granted against arrests in Portland of journalists and legal observers without PC

TRO granted in Portland protests against arrests of journalists and legal observers without probable cause. Index Newspapers LLC v. City of Portland, 2020 U.S. Dist. LEXIS 131672 (D. Ore. July 23, 2020):

3. Public Interest and Balance of the Equities

The third and fourth factors also weigh in favor of granting the TRO. As for the public interest, “[c]ourts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.” Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quotation marks omitted). Further, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quotation marks omitted) (granting an injunction under the Fourth Amendment).

The Federal Defendants argue that the government’s countervailing interest in maintaining public order on public property outweighs Plaintiffs’ First Amendment concerns. The Federal Defendants allegedly deployed agents to protect the federal courthouse and the nearby federal building. Although the Federal Defendants assert their right to disperse “violent opportunists,” there is no evidence that any journalist or legal observer—let alone any of the named Plaintiffs—has damaged federal property or acted violently towards federal officers. At oral argument, Defendants conceded that they have no such evidence. Indeed, the evidence before the Court shows that journalists and legal observers attend the protests as “guardians of the public interest,” not as vandals. Leigh, 677 F.3d at 900. 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. The City’s stipulation to the preliminary injunction is evidence of this workability.

The Federal Defendants’ second argument, that the government’s interest in preserving physical access to courts counterbalances Plaintiffs’ interests, also is without merit. Additionally, the relevant protests are happening after business hours, and there is no indication that allowing journalists and legal observers to stay despite a dispersal order interferes with the public’s access. None of the government’s proffered interests outweigh the public’s interest in accurate and timely information about how law enforcement is treating protestors. Finally, because Plaintiffs have “raised serious First Amendment questions,” the balance of hardships “tips sharply in [Plaintiffs’] favor.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007) (quotation marks omitted).