Incident Details
- Date of Incident
- January 26, 2024
- Targets
- The Oregonian
- Status of Prior Restraint
- Struck down
- Mistakenly Released Materials?
- Yes
Prior Restraint
A judge ordered The Oregonian to destroy documents about a gender discrimination lawsuit against Nike that were inadvertently released to the news outlet. The publishing gag, or prior restraint, has been withdrawn until another hearing can be held.
Judge allows Oregonian to keep Nike lawsuit documents
In a reversal of an earlier decision, a federal judge ruled on Feb. 28, 2024, that The Oregonian did not have to return documents it had inadvertently received related to a gender discrimination lawsuit against Nike.
In the ruling, U.S. Magistrate Judge Jolie A. Russo said the Portland, Oregon-based newspaper’s First Amendment rights protected its ability to report on the documents. Russo also struck down Nike’s request for discovery of the circumstances under which The Oregonian obtained the documents, saying that was “irrelevant to the Oregonian’s First Amendment rights.”
On Jan. 26, Russo had ordered The Oregonian to not disseminate the documents and to return them to Nike’s lawyer, who sent the documents to the paper accidentally. The paper appealed the decision three days later, arguing that Russo did not allow the paper to make arguments in court.
The publishing gag was withdrawn on Jan. 30 by another judge, who sent the case back to Russo. In the new hearing, The Oregonian was able to make its case in favor of keeping the documents.
Therese Bottomly, editor and vice president of content for The Oregonian and its website, OregonLive, said in an email to the U.S Press Freedom Tracker, “We are pleased with the magistrate judge’s strong and unequivocal ruling on our First Amendment rights. The decision upholds the principle that a free press is foundational to our democracy.”
A federal judge ordered The Oregonian on Jan. 26, 2024, to return documents related to a gender discrimination lawsuit against Nike and destroy any copies, after the plaintiff’s lawyer inadvertently sent them to a reporter on Jan. 19.
Judge Jolie A. Russo said in her order that the Portland, Oregon-based daily newspaper must agree “not to disseminate that information in any way; and to destroy any copies in its possession” by Jan. 31.
That publishing gag was vacated, or withdrawn, on Jan. 30 by another judge, who ruled that Russo must hold a hearing to allow The Oregonian to make arguments against the order before reviewing the issue again. The paper, in a Jan. 29 appeal, had argued that Russo did not allow the news organization to be heard in court, which it called a “quintessential due process violation.”
Russo held a hearing Jan. 30 and ordered the plaintiff’s attorneys to respond by Feb. 6 to arguments made by The Oregonian in its appeal.
“Prior restraint by government goes against every principle of the free press in this country,” Therese Bottomly, editor and vice president of content for The Oregonian, said in a statement emailed to the U.S. Press Freedom Tracker. “This is highly unusual, and we will defend our First Amendment rights in court.”
In its Jan. 29 appeal, The Oregonian argued that because it is a “non-party intervener” and has no stake in the outcome of the lawsuit, it is not subject to a protective order covering the documents.
“The Documents contain no national security implications, there is no risk of bodily harm or safety to any individual, and there are no competing constitutional rights at play—The Oregonian is the only one whose constitutional rights are on the line,” the filing read.
The Oregonian was writing an article, based on its independent reporting, about a culture of sexual harassment at Nike, when the attorney for the plaintiffs in the suit accidentally shared the documents in an email attachment.
The judge said the documents were subject to the case’s protective order, which makes them unviewable to the public. Other documents have been unsealed after a coalition of news outlets, including The Oregonian, filed a motion in court in April 2022.
The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].