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When Portland Tried to Dictate Favorable News Coverage of Its Protest Crackdowns

Portland Police Handcuffing Protester
Portland Police Handcuffing Protester
Mat dos Santos,
General Counsel and Managing Attorney,
Our Children's Trust
Vera Eidelman,
Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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December 26, 2018

After months of facing criticism for how Portland has been policing protests, the city’s mayor and police bureau recently invited select reporters to the bureau’s command center to watch their policing in action. The only catch? Well, there were at least three.

But first, some background: The Portland Police Bureau’s harsh crackdown on a recent wave of anti-Trump and anti-racist protests has been biased and almost certainly unconstitutional, with frequent use of explosives, pepper spray, and tear gas on demonstrators, as well as mass detentions and arrests.

And yet, downtown business owners and far-right groups still complained that the city wasn’t doing enough to stop protests in Portland. In response, Mayor Ted Wheeler proposed an unconstitutional emergency ordinance that would have limited when and where protesters could gather and given the police even more authority to stifle free speech. Fortunately, the Portland City Council rejected it.

Around the same time, the city invited two journalists to observe PPB’s command center for an upcoming protest. But they rightfully turned down the offer for several reasons.

For starters, the city invited only hand-picked reporters to attend. It never announced standards for selection, but the mayor’s office explained that reporters were chosen based on their “fair and consistent” coverage — in other words, their viewpoints.

This is not the only time in recent months that we’ve seen government actors limiting press access on the basis of non-existent standards or even a reporter’s viewpoint.

In November, after months of Trump regularly referring to CNN as “fake news,” the White House attempted to revoke CNN correspondent Jim Acosta’s press access. The White House briefly claimed that the revocation was in response to Acosta “placing his hands” on a White House intern. But after CNN said in a statement that the White House had lied about what happened, and numerous other outlets reported that the video the White House shared of the event was doctored, the White House instead explained that it revoked Acosta’s press pass because he asked multiple follow-up questions and didn’t immediately return the mic.

Part of a reporter’s job is to ask tough questions, and the law on limiting access based on the viewpoint of any such questions is clear: Once the government makes a space available as a source of information, it cannot selectively grant or exclude access based on viewpoint. It also cannot restrict access unless its decision is tied to clear and established standards. As a result, a court quickly ordered the Trump administration to restore Acosta’s access.

These First Amendment basics equally apply in Portland.

Problem number two with Portland’s plan? After hand-picking the reporters, the city asked even those individuals to sign a non-disclosure agreement in order to gain access to the command center that day. The terms would have barred the reporters from sharing much of the information they learned, and they could also have limited the reporters’ ability to gather or retain information gleaned from their experience at command center; they went so far as to require that any written notes the reporters took that day be “generic.”

Finally, the city told reporters that attendance would require them to clear any stories about the visit with a police officer. Under the terms of the NDA, even direct quotes from an officer would have been considered confidential until the quoted officer explicitly authorized their publication.

It isn’t hard to imagine how this “pre-clearance” requirement could translate into approval only for favorable coverage. It’s also easy to imagine reporters changing the tone of any draft they submitted for approval, or steering clear of certain pieces of information entirely for fear of violating the NDA. And the approval process itself could hold up publication, potentially impacting the timeliness of reporters’ stories.

Not surprisingly, all of the reporters who were invited declined the mayor’s invitation.

Reporters should have first-hand access to law enforcement practices so that they can effectively serve as a conduit to the public, which has the right to know how it’s being governed. But the access offered in this case was more misleading than meaningful. The city’s proposal threatened to create the impression of an informed press and a transparent government, while in fact allowing only curated and pre-cleared articles to reach the public.

Our democracy is strengthened when journalists have true, meaningful access to information, ask tough questions, and inform the public. Thankfully, Portland’s journalists seem to have a better handle on those vital journalistic roles — and a better grasp of the First Amendment — than the city itself.

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