For Some Arrested At Portland Protests, Release Is Conditional On Not Attending More

Enlarge this image

Protesters gather in front of the Mark O. Hatfield federal courthouse in downtown Portland, where some demonstrators have been arrested and others released from jail on the condition that they not attend any more protests.

Spencer Platt/Getty Images

hide caption

toggle caption

Spencer Platt/Getty Images

Live Updates: Protests For Racial Justice
Portland Protesters File Suit Against Trump Administration Over Federal Response

Enrique Armijo, a law professor at Elon University, explained that it is not uncommon for criminal defendants to give up certain rights as a condition of their release, but those conditions are typically very narrow, in the interest of public safety and tightly connected to the basis of prosecution.

The agreements in Portland, he said, are overly broad in that they do not show a clear public safety connection between the right the person is being asked to give up and the harm that person is alleged to have committed.

«There’s no way you can say that because of something you may have done with respect to federal property, a federal court is going to say you cannot engage in First Amendment-protected activity in the entire city in which that federal property is located, Armijo said. «That’s just the definition of what First Amendment law considers overbreadth: What you’re being asked to give up is much, much greater from a constitutional perspective than that which you are alleged to have done.

Elizabeth Goitein, who codirects the Brennan Center for Justice’s Liberty & National Security Program, said this kind of «blanket First Amendment restriction violates one of the most core constitutional rights.

«The fact that these people may or may not have committed a misdemeanor is irrelevant, they certainly haven’t been tried or convicted of any such offense and they are presumed innocent until proven guilty, she said. «Even after someone has been convicted of an offense, that does not mean that the government can require them to give up First Amendment freedoms going forward.

Goitein also noted that this practice raises red flags even beyond Portland because it could potentially happen in other cities.

«It’s a problem if it happens once, she said. «And if it’s happening systemically across a major city in this country, we need to be extremely concerned.

People have gathered for demonstrations against racism and police violence in Portland every night since the death of George Floyd in May, with tensions escalating after the Trump administration deployed federal agents to the city to protect the federal courthouse there earlier this month. Oregon Gov. Kate Brown said federal agents will begin a phased withdrawal on Thursday.