ACLU calls on DOJ to enact permanent protections for journalists covering protests

The American Civil Liberties Union (ACLU) is calling on the Justice Department (DOJ) to enact permanent protections for journalists and legal observers at protests, including preventing federal agents from arresting or using physical force against these individuals. 

In a letter sent Friday to Attorney General Merrick Garland and shared exclusively with The Hill, the ACLU, along with the National Association of Black Journalists and the NewsGuild-CWA labor union, urged the DOJ to adopt protections for journalists and legal observers at protests within the department’s law enforcement guidelines for First Amendment-protected events. 

The letter comes after a federal appeals court in October upheld a preliminary injunction granted by the U.S. District Court for the District of Oregon preventing federal agents from arresting, threatening or using physical force against “any person whom they know or reasonably should know is a journalist or legal observer,” unless there is probable cause to suggest the person may have committed a crime. 

The injunction also said that journalists and legal observers are not required to disperse when law enforcement orders protesters to do so, and that federal officials may not order any journalist or legal observer to stop recording or photographing a protest. 

The court order, which grew out of the use of force and dispersal tactics used against journalists at Portland’s racial justice protests last summer, also mandates that federal officers wear identifying markers so they can be clearly recognized by journalists and others observing protests. 

However, the ACLU in its Friday letter said the DOJ is “in court right now asking the court to lift the preliminary injunction enforcing them—without making any meaningful changes to its guidance or to its procedures for addressing protests.” 

The ACLU commended the DOJ for taking moves to reverse policies to search reporters’ phones and email data under the Trump administration, as well as prosecutors’ search for Capitol rioters suspected of attacking journalists on Jan. 6. 

However, the civil rights organization argued that “the DOJ is simultaneously and paradoxically taking up the Trump mantle to fight free press, free speech, and government transparency in court, and defending the ability of law enforcement to engage in the same conduct as the January 6th rioters, by continuing to defend the federal government’s purported authority to violently disperse journalists and legal observers at protests.” 

“How quickly the government asks us to forget the full-scale assault on racial justice and the freedom of speech launched by police departments and federal law enforcement officers in cities across the country – from Portland to Kenosha to Washington, D.C. – last year,” the ACLU added. “We have not forgotten and we cannot sweep those violations of our constitutional rights aside.” 

Kate Ruane, senior legislative counsel with the ACLU focused on free speech protections, said in an interview with The Hill that Americans “cannot just take the Justice Department’s word that they will not abuse journalists and legal observers and protesters anymore, simply because the administration has changed.”

“We have not seen the permanent policy changes necessary to prevent it from happening in the future,” she added, arguing that permanently enacting the provisions of the preliminary injunction within existing DOJ law enforcement guidelines is “a simple ask.” 

The Hill has reached out to the DOJ for comment.