Letter from the Editor: Ruling in Nike case harmful for journalism and the public (2025)

A ruling earlier this month from a federal appeals court raises serious First Amendment issues for Oregon journalists who intervene in lawsuits to unseal court records.

News organizations routinely use the courts to obtain records that are outside of public view. The media might become involved in an existing case by asking that records not available to the public become open to all. An example is when a probable cause affidavit related to a criminal charge is filed under seal. The media might ask a judge to unseal the affidavit to provide more background and context for the charges.

In some cases, media organizations might file to intervene in a lawsuit for the limited purpose of seeking to unseal records filed in the matter. That was the case a few years ago, when The Oregonian/OregonLive joined the Portland Business Journal and Business Insider in asking a judge to unseal records in a significant case involving Nike, one of our signature companies in Oregon. The Reporters Committee for the Freedom of the Press represented the media coalition.

The underlying case involved plaintiffs who claimed they had been harmed by a toxic culture at Nike, which denied the claims and vigorously defended itself. The basis for some of the plaintiffs’ complaints were contained in what were called the “Starfish surveys,” organized by a small internal group that wanted to understand experiences reported by Nike employees.

A federal magistrate judge agreed with the media organizations that the documents filed in court should be unsealed. Nike appealed, saying the information would simply serve to embarrass employees.

Independently, The Oregonian/OregonLive’s reporter Matthew Kish was pursuing an article about a different former employee with an entirely separate experience at Nike. The interesting twist was she was the onetime sister-in-law of Mark Parker, who later would become Nike’s CEO.

She was not a plaintiff in the lawsuit, but Kish sought comment from plaintiffs’ lawyer Laura Salerno Owens because Parker’s complaints were similar to those of the women who had sued, and because Salerno Owens has heard the accounts of dozens of women who have worked at Nike. Salerno Owens previously told The Oregonian/OregonLive she’s represented more than 50 Nike employees.

During their conversation at a downtown Starbucks, Salerno Owens emailed Kish a set of documents that she felt might be relevant to his article. She later told the court she inadvertently did so, believing she was sending public court records.

Kish quickly realized the documents did not look like any he had seen in the open court files, and Salerno Owens quickly asked for the records back, later going to court to demand their return.

Federal Magistrate Judge Jolie A. Russo ordered us to return the documents, but she did so without hearing from our attorneys. Because The Oregonian/OregonLive was intervening for a limited purpose, we and our attorneys could not access certain records in the court system, nor were we notified of any court hearings related to establishment of the protective order or the request to return the documents.

We appealed to Judge Marco Hernandez and he sent the case back to Russo, who correctly decided we had a First Amendment right to keep and report on the documents. That typically is the case if a reporter has done nothing illegal or wrong in receiving newsworthy information.

Nike appealed this ruling to the 9th Circuit Court of Appeals, which held arguments in February in San Francisco.

In a ruling I characterized as “baffling” and “troubling,” a three-judge panel decided that we were in fact a full party to the case despite previous rulings to the contrary.

The decision sends the case back to federal court in Portland. The judges brushed aside any First Amendment questions that arise from any order that a news organization return newsworthy documents it received without having done anything improper.

They decided we were a party but never addressed the fact we were not entitled to, nor allowed to, view any of the pleadings filed by parties in the case or be heard on them, as the actual parties were.

Why is this concerning for journalists? First, it means if we receive significant, newsworthy material, we could be forced to return it and not report the information to the public, even if it is highly important to the community.

Second, any reporters not involved in the court battle and who received such information under identical circumstances, might be free to report on the information.

In other words, this creates a disincentive for media organizations to join legal battles on behalf of the public and in the public interest. Doing so could limit their ability to freely report on what they learn.

Media organizations that are fighting for the public’s right to know suddenly and mysteriously become a “party” to the underlying lawsuit and supposedly subject to the orders in the case.

This is a dark day for journalism in Oregon. It’s a darker day for Oregonians who care about the freedom of the press. We press for information, and publish it, because we think the public has a right to know.

We’re not done yet. We plan to continue to fight for our rights under the First Amendment and for yours.