Free Speech

“[W]e have little trouble in concluding that the people who framed and adopted Article I, section 8, as part of the original Oregon Constitution intended to prohibit broadly any laws directed at restraining verbal or nonverbal expression of ideas of any kind.”
-- State v. Ciancanelli
(Oregon Supreme Court, 2005)

The framers of the U.S. Constitution believed that the freedom of inquiry and liberty of expression were the hallmarks of a democratic society. The First Amendment of the Bill of Rights provides protections in a number of areas including free speech.

The framers of the Oregon free speech equivalent, often referred to as our free expression provision, were even more protective of our rights.

Historically, at times of national stress, real or imagined free speech rights come under enormous pressure. During the “Red Scare” of the 1920s, thousand were deported for their political views. During the McCarthy period, the infamous blacklist ruined lives and careers. Today, protestors of U.S. government policies are attacked and creators, producers and distributors of popular culture are often blamed for the nation’s deep social problems.

Calls for censorship threaten to erode free speech.

The First Amendment and Oregon’s free expression provision protect popular speech and the most offensive and controversial speech from government suppression. The best way to counter obnoxious speech is with more speech. Persuasion, not coercion, is the solution.

Litigation

Victory! ACLU of Oregon Settles Lawsuit on Behalf of Portland Woman Whose Phone was Seized While Filming Police in 2013

Carrie Medina filming policeApril 10, 2017 – The American Civil Liberties Union Foundation of Oregon (ACLU of Oregon) today announced that a settlement had been reached with TriMet, the City of Portland, and the City of Gresham in a federal lawsuit stemming from a 2013 incident when a Portland woman’s phone was seized while live streaming police activity. The lawsuit, Carrie Medina v. City of Portland, et al, argued that Medina’s constitutional rights were violated when a Gresham police officer snatched her phone from her hands, twisted her arm, and detained her while she was live streaming police activity.

“My experience may have been eye opening for many, but it was no surprise to those who have regular encounters with law enforcement,” said Carrie Medina, plaintiff in the suit.

The ACLU lawsuit alleged that police violated Medina’s free speech and free press rights when they stopped her live stream broadcast of a police encounter involving multiple law enforcement agencies near a Trimet stop. The suit also alleged that Medina’s rights against unreasonable search and seizure were violated when the officer seized and then searched her phone without her consent or a search warrant, and that the officer also unlawfully detained her that day.

WATCH: An officer grabs Carrie Medina's phone in Portland in 2013.

The settlement agreement stipulated that Portland and Gresham must adopt new police policies and training regarding the public’s right to film police activities. The City of Gresham’s new policy under the settlement went into effect in May 2016 and the City of Portland’s new policy went into effect in October 2016. The City of Gresham was also required to pay $85,000 in legal fees to Medina.

“Carrie wholeheartedly believes in the power of filming the police as a tool to increase accountability,” said Alan Galloway, attorney at Davis Wright Tremaine who represented Medina. “Carrie was clear that she wanted her case to bring about policy changes to protect the right to film police, not monetary damages. Although the settlement took a lot of time and effort to reach, the resulting policies and training clearly recognize the Constitutional right to film the police.”

“Bystander video has had an incredible impact on the way Americans understand police encounters,” said Mat dos Santos, legal director at the ACLU of Oregon. “Now anyone with a cell phone can expose injustice and hold police accountable. It is critical that police policies recognize and respect the public’s right to film police.”

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Police Accountability Advocates Call for Portland Police Bureau Protest Policy Changes

March 22, 2017 - Today, the ACLU of Oregon, joined by the Portland Chapter of the National Lawyers Guild and Oregon Lawyers for Good Government, submitted another round of comments to Portland Police Bureau’s directive 635.10 – Crowd Control / Crowd Management. 

These comments continue the call for a more sensible approach to policing protest in an attempt to avoid clashes seen in Portland in recent months

We call for:

1. De-escalation tactics over force;

2. Demilitarization of the police; and,

3. The prohibition of dangerous projectile and chemical weapons.

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Legislation

VICTORY! The Right to Film the Police Bill Passes the Oregon Legislature

The Oregon legislature has made it clear the public has the right to openly record police by passing HB 2704. The bill was signed into law by the governor! 

June 16, 2015 - Victory - Right to Film the Police bill passesBystander video of police encounters can be very powerful, as recent events have shown. We can all agree it should not be a crime to pull out a phone, hold it up, and record an officer who is engaged in misconduct. However, under the current Oregon law, it is a crime to record a conversation without "specifically informing" the parties to the conversation. The problem is obvious — it may not always be safe or reasonable to provide a warning; for example, when the officer is engaged in misconduct or if the officer is dealing with a dangerous situation. Now that it has been signed into law, the right to openly record police is protected in Oregon.

Over 1,700 ACLU supporters took action on this issue by contacting their legislators in Salem. Together, our voices were heard! Thank you to everyone who took a stand for the right to film police in Oregon.

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FREE SPEECH: Enable expansion of municipal "sit-lie" ordinances (HB 2963) (2013)

Seeking to expand the “sit-lie ordinance” in Portland, the Portland Business Alliance (PBA) introduced HB 2963. The bill would have overturned the decision in the 2009 Multnomah County case State v. Perkins where the judge said that the Portland ordinance that regulated when people could be on the sidewalk was preempted by state law and therefore was unconstitutional.

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Other

Portland’s Protest Problem

The militarized and heavy-handed police approach to protest in Portland is expensive, dangerous, and threatens our democracy.

line of riot police in Portland on 1202017January 25, 2017 - In stark contrast to the policing of the Portland Women’s March the next day, which was by many accounts congenial and effective, the law enforcement response to the Inauguration Day protests was violent and excessive. Protesters, journalists, bystanders, and our own ACLU legal observers have shared disturbing reports and video that show the chilling presence of hundreds of officers in riot-gear, many of whom were only recently trained, directing the crowd with confusing, and at times contradictory, orders and force. Finally, in what is becoming an all too common occurrence, the protest was ended through the deployment of so-called “crowd control devices,” resulting not just in the silencing of First Amendment activities, but also causing serious injuries to the public. No matter what others have said, this was a failure. 

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An Open Letter to Mayor Hales Regarding Free Speech

free speech sign behind a fenceNovember 14, 2016

Dear Mayor Hales,

The ACLU of Oregon joins the calls urging those few who have been engaged in violence and vandalism during the protests to stop. However, we fully rebuke both your calls for the protests to end and your statement that protest cannot effect change in our democracy. American history, indeed world history, is full of stories of protest that opened the path to change.

Peaceful assembly and protest is at the heart of our democracy. It may not always be convenient or pretty, but we think it is powerful.

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