U.S. court officials in Oregon are reviewing bans on future protesting that were placed on some people arrested during protests in Portland after some raised concerns that the prohibitions violated the First Amendment.
“We’re reviewing every case again right now and looking at the wording of some of the conditions,” Brian Crist, chief pretrial services officer for the U.S. District Court in Portland, said Wednesday. “A lot of this I think will be resolved.”
Crist said he couldn’t comment on individual cases, but he noted the court looks at each defendant individually and doesn’t have “blanket conditions” that are placed on everyone.
Portland has seen nightly protests for more than two months since George Floyd’s death in police custody in Minneapolis. The unrest intensified after federal agents were dispatched to protect a downtown U.S. courthouse.
The protest bans, first reported by ProPublica, were imposed in at least a dozen cases — most of them involving misdemeanor charges of failing to obey a lawful order. Defendants had to agree to the prohibitions in order to be released from jail while they await trial.
Some of the protest bans were hand-written in the court documents, others were typed out: “Defendant may not attend any other protests, rallies, assemblies or public gatherings in the state of Oregon,” many of the release documents read.
Several experts have raised concerns that the bans violate the U.S. Constitution’s protections of free speech.
“I can’t believe that they think this is constitutional,” said Aaron Caplan, a professor at Loyola Law School in Los Angeles. “It’s really broad and it’s hitting at something that is constitutionally protected.”
In at least some of the cases, the protest bans were added by U.S. Magistrate Judge John Acosta. He didn’t immediately respond to a request for comment.
Kevin Sonoff, spokesman for U.S. Attorney Billy J. Williams, said his office didn’t ask for the bans.
“We have only sought geographic (five blocks from the Hatfield Courthouse) and curfew restrictions. The additional restrictions were added by the court,” Sonoff wrote in an email to The Associated Press.
Federal Defender Lisa Hay said her office is working to get the conditions modified in some of the cases.
“We think that kind of condition is overbroad and unconstitutional,” she said. “We understand the court was weighing specific concerns of different defendants who wanted to be able to work and not have a curfew, and so the court made that condition an alternative.”
Typically pretrial release conditions are narrowly targeted to the crime, Caplan said. For instance, if someone is accused of assault, they may be banned from having any contact with the victim in the case or going near their home.
But protests, rallies and other forms of political speech are protected by the First Amendment, Caplan said, and not necessarily connected to the crime of failing to obey a lawful order.
“You just can’t go to any protests anywhere? Well that’s ridiculous,” he said. “It’s no longer related to the crime that you were charged with, it’s not connected to any particular victim. It’s just taking away your right to freedom of speech.”
