While judge protects journalists in Portland, court ruling in Seattle endangers reporters

UPDATE: Within hours of the issuance of the temporary restraining order in Portland, federal agents shot Oregon Public Broadcasting journalist Rebecca Ellis with tear-gas projectiles. She was not injured, but it it appears to be a flagrant violation of the order.

Journalists won some and lost some in the past week in the Pacific Northwest.

The good news was that a federal judge temporarily barred federal agents from using force or threats against journalists covering the demonstrations in downtown Portland.

But that legal victory was tempered by a King County Superior Court judge’s ruling that the Seattle Times and other news outlets had to turn over unpublished photos and videos of a violent May 30 protest, despite a strong shield law in Washington state.

Both cities have seen protests in the wake of the killing of George Floyd in Minneapolis after a police officer kneeled on his neck for almost nine minutes. There has been violence with the protests, and President Donald Trump sent federal agents to protect federal property in the city.

But there are reports that the agents, who do not wear agency patches on their camouflage uniforms and body armor, have gone outside the boundaries of the federal courthouse and other federal buildings, grabbing people off the street and bundling them into unmarked vehicles.

During the protests, these agents have also fired “impact munitions” — so-called less-lethal weapons such as rubber bullets, beanbag rounds and wooden dowels — at journalists and legal observers during the protests.

Attorney Matthew Borden, representing the American Civil Liberties Union of Oregon, said the assaults on journalists were not accidents, but the “acts of intimidation by a tyrant, and they have no place in the city of Portland.”

We’ve already seen this happen in other cities, where police target journalists who are observing the protests and police actions, some of which border on violent themselves.

In a 22-page ruling, U.S. District Court Judge Michael Simon issued a temporary order barring the federal agents from willfully targeting, threatening or intimidating journalists who were covering the protests, as well as legal observers.

Simon rejected the U.S. Justice Department’s arguments that it was too hard for the officers to tell the difference between journalists and violent protesters, as well as the assertion that journalists did not have a right to access above the public to the closed-off areas.

“When wrongdoing is underway, 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,” Simon wrote.

Unfortunately, farther up Interstate 5, King County Superior Court Judge Nelson Lee believes journalists should be the Seattle Police Department’s eyes rather than those of the public.

Lee upheld a subpoena ordering the Seattle Times, KIRO 7, KING 5, KOMO 4 and KCPQ 13 to turn over all unpublished photos and unaired video and outtakes from coverage of a May 30 demonstration downtown.

Police say they are seeking the video and photos to identify who stole firearms from SPD vehicles that were set afire during the demonstration.

Lee claimed that the police had met the burden of overcoming the state’s shield law by demonstrating that the information was “highly material and relevant” and that all other reasonable means were exhausted.

First, let me say that stolen weapons are a serious matter. But it’s also no excuse to force journalists to surrender information that is protected by the state’s shield law.

It is highly unlikely that police have exhausted all reasonable efforts to get the information from other sources. For example, there are social media posts, surveillance camera footage from nearby businesses and homes and plain old shoe-leather detective work. Police could also offer a reward for information that will loosen someone’s lips enough to finger the suspects.

Forcing journalists to turn over footage, photos and other information gathered in the process of reporting undermines journalistic independence and puts journalists in danger.

A shield law recognizes the Fourth Estate’s role as an independent observer capable of bearing record to government’s actions and informing the public of what they do. In order to do that, journalists need protection from turning over their work materials, unpublished information or names of confidential sources to government.

It’s akin to the privilege we grant clergy, doctors and lawyers not to disclose things they were told by those they work with. While it may frustrate police and prosecutors, those privileges ensure that society works and justice is served.

The same goes for journalists. Allowing us to protect information ensures that we can do our jobs of holding the powerful accountable and helping those who are wronged.

If this subpoena is allowed to stand, it will make journalists’ jobs much harder — and dangerous.

There are already reports of protesters attacking photojournalists  because they don’t want their pictures taken. If journalists are forced to give information to the police, we will be seen as merely informants for the government and targeted even more for violence.

To follow that path to its conclusion, it would mean journalists would likely not want to cover a demonstration for fear of violence, and thus deprive both sides of an independent observer who can stand as a witness for what happened on both sides.

Unless police Chief Carmen Best and Mayor Jenny Durkan exercise some common sense and withdraw the subpoena, we have to hope that an appeals court judge has more courage than Judge Lee.

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