Commentary

Pointless trial of Asheville journalists will undermine city’s progressive image

April 17, 2023 11:55 am
Asheville police at a homeless encampment

Asheville Police at a homeless encampment ina city park (Photo courtesy Veronica Coit/Asheville Blade)

Authorities in Ohio dropped charges within days of the arrest of a journalist at a February press conference. Phoenix’s mayor personally apologized in January to a reporter detained while conducting interviews. In December, the Atlanta Police Department said it would investigate officers who threatened charges against a filmmaker documenting a protest. 

But Buncombe County prosecutors soon plan to try Asheville Blade journalists Matilda Bliss and Veronica Coit — the trial is currently scheduled for April 19 — after numerous continuances. They were arrested while recording a homeless encampment sweep at a public park on Christmas night of 2021. The basis for the charges? The journalists kept recording shortly after the park’s 10 p.m. closing. It’s unclear if they also jaywalked on the way there.     

Bliss and Coit are not charged with obstructing or endangering police or anyone — just trespassing. Bodycam footage shows police decided to arrest them before clearing the camp “because they’re videotaping.” They repeatedly explained they were journalists, to no avail. 

According to the U.S. Press Freedom Tracker, it’ll be just the fourth trial of a journalist arrested on the job nationwide since 2018. Trying journalists for newsgathering is generally associated with authoritarian regimes abroad, not supposedly progressive U.S. cities. 

The charges raise two questions. One, are prosecutors within their rights to try the journalists? After all, the First Amendment protects journalists’ right to gather information, especially on public land. And everyone has a Constitutional right to record the police.

Two, assuming prosecutors can lawfully try the journalists, should they? Unlike trespassers on private land, the journalists didn’t violate anyone’s privacy or property rights. By all accounts they were performing a Constitutionally protected public service — documenting police conduct. Police Chief David Zack contends they should have reported from the sidewalk outside the park. But officers would have been nearly invisible, even in daylight.

The right to record police on public land

The answer to question one — whether the prosecutions are lawful — is likely no. It’s true, journalists are not above the law. But the Supreme Court said well over a century ago that authorities cannot use generally applicable laws as pretext to target journalists (or others) for exercising First Amendment rights.

This year, an appellate court ruled a North Carolina trespassing law could not be weaponized against journalism. That’s consistent with, for example, a 1945 Supreme Court ruling against targeting First Amendment expression under trespassing laws and a 2018 ruling that probable cause doesn’t give officials a pass to retaliate against Constitutionally-protected speech. 

The bodycam footage makes the arresting officers’ intentions clear. Not only do officers admit arresting journalists “because they’re videotaping,” they can also be heard discussing which peaceful protesters to needlessly arrest, settling on “the loudest ones.” 

Zack suggested “maybe it was the journalists who were the problem.” But there’s no footage of journalists causing “problems.” If they had, they’d be charged with more than violating curfew. Maybe the “problem” Zack means is the Blade’s past critical coverage. Months before the arrest, Zack forwarded an email to City Manager Debra Campbell calling to “fight back” against the Blade. In 2020, his officers listed “no scrutiny from the media” as a priority in survey responses

Lawyers can debate whether there’s enough evidence to prove unconstitutional retaliation against the press. But do taxpayers want a jury to decide on their dime? Is there anything in it for them, or is their government wasting their money out of spite?

Pointlessly prosecuting journalists sends the wrong message

Let’s say prosecutors can lawfully try the journalists. Does that mean they should? Prosecutors in Ohio, Phoenix and Atlanta could have argued that those journalists’ conduct met the legal definition of trespassing. But cooler heads recognized prosecuting victimless “crimes” by journalists would waste taxpayer funds and undermine transparency. 

When Los Angeles prosecutors declined to charge almost 200 protesters and journalists in 2021, the City Attorney explained that free speech is “fundamental to our democracy,” and those arrested “did not threaten public safety and it would not be in the interest of justice to prosecute them.” Exactly. But Buncombe County DA Todd Williams apparently sees it differently, even after he had to call in the Attorney General because of a backlog on murder prosecutions. Surely there are real crimes on which taxpayer funds would be better spent. 

North Carolinians should ask the following questions: Why would a transparent government not want journalists recording police? Do we want to set a precedent that journalists must ignore news on public land at nighttime, or risk jail? And why are officials risking taxpayer-funded liability over this? Other journalists arrested at encampment sweeps have sued. 

Authorities have much to lose and nothing to gain by proceeding with this pointless prosecution. Prosecutors should drop the charges and save Asheville’s progressive image before it’s too late.

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Seth Stern
Seth Stern

Seth Stern is the Director of Advocacy for Freedom of the Press Foundation. He previously worked as a First Amendment lawyer and journalist.

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