by Kelan Lyons, NC Newsline
A Superior Court judge who refused to dismiss a case against two Asheville reporters convicted of trespassing based his decision on the First Amendment — not as protection for the journalists, but as grounds for him to uphold their conviction.
In a ruling issued June 22 obtained by Newsline, Superior Court Judge Tommy Davis wrote that had he dismissed charges against the journalists, who were arrested while covering police activity in a public park in 2021, they would have received First Amendment protections that others caught up in the sweep did not enjoy.
Matilda Bliss and Veronica Coit, two reporters for the self-described leftist news publication The Asheville Blade, were charged with misdemeanor trespassing in 2021 for reporting on police clearing protestors and and at least one houseless person from Aston Park on Christmas night. The park had closed for the evening, and police repeatedly told those in attendance to disperse before starting to arrest people.
“The defendants contend that the City should have preferred their First Amendment Rights over the First Amendment Rights of the other individuals in the Park by allowing defendants to stay longer in the Park in violation of the ordinance,” Judge Davis wrote. “In essence, the defendants are asking the City to enforce the ordinance in a discriminatory unconstitutional content based manner. … This court has found no case indicating that a right to gather news takes precedence over an individual actually expressing themselves, or vice versa.”
The journalists’ attorney, Ben Scales, argued in court that the reporters were targeted for their critical coverage of the city and its police force, and of how people in power have responded to Asheville’s homelessness problem. Scales said police arrested Coit and Bliss first that night — four others were arrested that evening, and 16 were ultimately charged with felonies for leaving items in the park after police had cleared it — because Asheville police wanted to hide their actions from the public. Scales said Bliss and Coit weren’t at the park as mere members of the public but as reporters, and that afforded them special protection since they were there to cover a newsworthy event.
Prosecutors, meanwhile, argued it was an open-and-shut case. The police had told Bliss and Coit to leave. They didn’t. That’s trespassing.
Davis wrote that Bliss and Coit could have done their job without breaking the law and staying in the park. They could have observed the police from outside the park’s grounds, interviewed the people who were arrested, acquired publicly available information from court and city records, and sought police body cam footage (which was eventually released after the Freedom of the Press Foundation, the Committee to Protect Journalists and the ACLU of North Carolina petitioned the court to release the videos).
Another reason Davis didn’t dismiss the case: Bliss and Coit weren’t the only ones taking photos or shooting video that night, making it “highly likely that these others were also documenting police action for dissemination to the public in pursuit of expressing their views as well.”
Social media offers a microphone to anyone with an internet connection. Anyone with a cell phone could claim to be a journalist with First Amendment Rights, Davis wrote, stating that, “It is interesting to note that the title of journalist can be broadly defined.”
In short, the line between protestor participants and journalists was blurred that night. After all, Davis wrote, Bliss had been with protestors hours before the police arrived, “and indications are she has views aligned with the participants.”
Davis acknowledged the city’s challenges in responding to homelessness in his ruling. There is an ongoing tension about how to deal with encampments and help Asheville residents who don’t have housing, Davis wrote, a strain highlighted in publications like The Blade, whose criticisms have been circulated among city employees and police officers.
Scales had contended that law enforcement had targeted Bliss and Coit for their views. Davis pointed out, however, that the officers who testified in the trial had said they had no knowledge of The Blade. (At one point in the bench trial, a lieutenant with the Asheville Police said, ““I didn’t care whether they were reporters or not.”)
Davis rejected the idea that Bliss and Coit were arrested for reporting the news, despite police body cam footage from that night showing an officer suggested arresting them first because they were videotaping what the police were doing. Davis wrote that the officer who made that statement was not the officer who made the arrest, and it isn’t clear why the officer made that comment.
“It is somewhat speculative to conclude from this statement that defendants were singled out, especially in light of the logic and order the police used in clearing individuals from the Park, as previously indicated, and that others were also using their phones to video the scene,” he wrote.
Davis did acknowledge that Bliss spent too long in the jail transport vehicle — three hours. Davis called the delay “inordinate.” But he didn’t buy the argument that it was retaliation, and said the several officers who mis-gendered Bliss, who is trans, had committed “independent mistakes,” not tried to impact the reporter’s newsgathering efforts.
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