On Thursday, a federal district judge in the District of Oregon issued a restraining order to protect journalists from being forced out, arrested, or threatened when attempting to film the actions of federal forces occupying a portion of downtown Portland. The ruling came after the ACLU submitted evidence of at least a dozen incidents in which journalists and photojournalists were beaten, gassed, and shot with “impact munitions” to drive them away from recording the actions of Donald Trump’s patchwork force of untrained, unbadged, camo-wearing troops.
The ruling provides at least a 14-day window barring attacks on journalists, seizing cameras or recording equipment, stealing press passes, or ordering journalists to stop filming; all of which seems as if it should never have required an order in the first place. But if the idea of a 14-day window for journalist freedom seems odd, the argument from the William Barr Department of Justice is even worse. What the DOJ argues does away with the whole concept of threat, arguing that sure, reporters may have been beaten and they may be beaten again … but you can’t do anything to prevent it.
As with many legal actions, the DOJ response to the claim brought by the ACLU is a straightforward attempt to have the whole thing thrown out on the basis of “standing.” But how that argument is made is more than a little amazing.
In claiming that neither the ACLU or any of the reporters it represents have standing to ask for relief against federal harassment, Barr’s DOJ makes this push: “Plaintiffs’ gambit here—they seek to have the Court enter an emergency injunction based on alleged past encounters involving federal law enforcement officers, but have not demonstrated that similar incidents will take place in the future, much less that these particular plaintiffs will again experience the same alleged conduct by federal law enforcement officers. Because Plaintiffs cannot demonstrate a certainly impending injury, they lack standing to seek injunctive relief.”
Get that? Sure, our guys may have beaten you yesterday, and they may be threatening you now, but because you can’t demonstrate “a certainly impending injury,” you don’t have the right to speak. This isn’t just an argument that would free the forces in Portland to batter as they please, but would be ridiculous if introduced in any other circumstance. This isn’t an appeal to drop consideration of unconnected acts that took place in the distant past. This is literally the DOJ saying you can’t seek protection against someone who engaged in physical brutality yesterday. Not unless you can prove they will cause an injury in the future.
Fortunately, the argument also seemed ridiculous to U.S. District Judge Michael Simon. He not only provided a 14-day restraining order against the federal forces, he specified language that makes both the agencies involved and the people on the scene individually responsible for their actions. Both federals and their supervisors can be held liable if they disregard Simon’s ruling.
“When wrongdoing is underway,” wrote Simon, “officials have great incentive to blindfold the eyes of the Fourth Estate. The free press is the guardian of the public interest, and the judiciary is the guardian of the press.” All of which leaves just two questions … why just 14 days, and why not extend this protection to peaceful Black Lives Matter protesters being gassed, beaten, and kidnapped by Trump’s patchwork gestapo?