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Aug 1, 2020 5:26 PM ET

“No-Protest Condition Will Be Dropped for People Facing Federal Charges in Portland Demonstrations”




iCrowd Newswire - Aug 1, 2020

So reports The Oregonian (Maxine Bernstein); this is the condition I discussed a few days ago: “defendant may not attend any other protests … or public gatherings in … Oregon.” As I mentioned then, the condition might well be unconstitutionally overbroad, though the complexity of the law of pretrial conditions makes that not entirely clear.

But the article also mentions,

Since early July, federal prosecutors have routinely asked judges to adopt other conditions before the defendants can be released pending trial: a curfew from either 8 or 10 p.m. until 6 a.m. and geographical limits that require them not to come within a five-block radius of the federal courthouse unless for official court business.

But U.S. Magistrate Judge John V. Acosta added the no-protest provision when a defendant balked at the proposed curfew, prohibiting the person from attending any protests, rallies or public assemblies while on release.

Are the curfew condition and the five-block exclusion condition constitutional? They are facially speech-neutral, but they would still have the effect of restricting speech—and indeed their purpose would presumably be to prevent attendance at protests, at least some part of the time. (What’s the point of a curfew for the defendants otherwise? Is the court worried that they’ll be out too late partying?) I’ve seen some such conditions upheld by some courts, even with pretty weak justifications; but I would think that they should be challengeable on First Amendment grounds here, though I stress again that the law in this area is complicated.

 



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