By editorial board • 

Keeping public in the dark eternally inviting for some

Here we go again. It seems government never learns.

We refer to two hot new public records cases boiling up in Oregon.

Typically, such cases involve a news outlet taking action in pursuit of a record the affected public agency is reluctant to reveal. But in both of these cases it’s entirely the other way around.

In one case, a federal magistrate is trying to force The Oregonian to return or destroy public records the newspaper has already obtained without any allegation of wrongdoing on its part. In the other, Portland is suing Oregon Public Broadcasting to thwart a records release ordered by the district attorney after ensuring due process by weighing legal arguments from both sides.

Freedom from prior restraint is one of the most fundamental of all rights granted under the First Amendment to the American Constitution, and that’s what’s at issue in The Oregonian case.

Legal action of this sort normally alleges actual damages after the fact, not damages the aggrieved party feels might result from a potential future action if the other party is allowed to proceed unfettered.

The bedrock case is Near v. Minnesota. It concluded with the Supreme Court striking down a pre-emptive gag order imposed on Jay Near’s Saturday Press, which the state considered an unprincipled pest.

But the headliner is the celebrated Pentagon Papers case of 1971, brought by the Nixon Administration. In it, the high court closed ranks to allow publication of a classified Vietnam War history leaked by conscience-stricken co-author Daniel Ellsberg.

The local dustup arises from a sex discrimination suit brought against the Nike shoe company, a pillar of the Oregon business community.

The newspaper was conducting a tandem investigation of its own when a lead Nike lawyer inadvertently shared internal records not previously made public. She demanded their return or destruction, and a federal magistrate followed up by so ordering.

And the alleged harm were the records to reach the public? Discomfort or embarrassment for executives at corporate headquarters, portrayed by critics as something of a glorified locker room.

Nixon had at least one thing going for him that the Nike crew doesn’t. He could claim publication of the Pentagon Papers would imperil national security at the highest levels.

Embarrassment in a testosterone-fueled executive suite doesn’t even begin to compare. And remember, Nixon failed to lure even one justice into taking his side. So there’s that.

The Oregonian filed a 15-page motion Monday seeking to stay or quash the order on an expedited basis, and we stand firmly with our sister newspaper on that. Prior restraint in any form poses a clear and present danger to our nation’s foundational First Amendment.

Fortunately, it looks for all the world like relief is on the way, and swiftly so. A federal judge responded to The Oregonian’s motion Wednesday by ordering the magistrate to reconsider in light of the newspaper’s prior restraint arguments, and suspended the magistrate’s return or destroy order in the interim.

The OPB case stems from efforts to learn what affected Oregon corporations paid into Portland’s new $540 million Clean Energy Fund. The city failed to persuade the district attorney they deserve financial confidentiality, so has filed suit in an effort to block enforcement of his release order — that or, perhaps more likely, make it too costly for those with shallower pockets to justify proceeding further.

This case also has a clear precedent. It comes in the form of a case that is both recent and locally rooted — the State Psychiatric Security Review Board’s abortive attempt to keep Vale’s Malheur Enterprise weekly from obtaining records ordered released by the Malheur County district attorney.

At issue here was the board’s termination of a 20-year criminal incarceration for a man who engaged in a kidnapping and double-murder 23 days later.
Might the airing of its thinking have caused its members some measure of discomfort?

Yes. And it no doubt did in the end, as the paper prevailed, thanks to help owner Les Zaitz got from high-placed friends in the legal community. He happens to be one of Oregon’s most celebrated investigative journalists, and that never hurts.

Does the public deserve to know what led our nation into a 20-year war dependent on the public draft of citizens for often-fatal war duty? What led women to raise hostile workforce allegations against Nike in a public courtroom? What led the public Psychiatric Review Board to free a long-time inmate so troubled he struck again in less than 30 days? Who kicked what into Portland’s massive new publicly commissioned energy kitty?

We think the answers to that are yes, yes, yes and yes.

Ours is a government of, by and for the people. With only the very rarest of exceptions, they have a right to know when public bodies and processes come into play.

As Justice Hugo Black proclaimed in the court’s historic Pentagon Papers ruling, the First Amendment is designed to free the press to “bare the secrets of government and inform the people.” That’s what it’s all about.


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