In allowing NC journalist convictions, judge gets the Constitution backward

Last month, a North Carolina judge reportedly instructed a jury not to consider the First Amendment in deciding whether two journalists could be convicted for recording police evicting a homeless encampment and dispersing protesters. He said he would resolve constitutional issues in deciding the journalists’ motion to dismiss the charge that they broke a park curfew.

But Judge Tommy Davis’ ruling denying the motion is full of troubling biases and fundamental legal errors. First, he expressed largely pointless reservations about whether the defendants were actually journalists. Second, he bizarrely reasoned that the First Amendment requires police arresting protesters to also arrest journalists, out of fairness.

Journalists are allowed to have political views

Sure, the prevalence of mobile technology and social media can complicate academic debates about the definition of “journalist.” We prefer to focus on acts of journalism rather than individual credentials. But that’s a subject for another day: For now, we can all agree that someone who gets paid to regularly report news for an established media outlet is a journalist. Right?

Not so fast, said Davis. “It is interesting to note that the title of journalist can be broadly defined,” he wrote, despite acknowledging that Matilda Bliss and Veronica Coit regularly report for the Asheville Blade, which has been covering Asheville since 2014. “In today’s society, anyone with a cell phone capable of recording voice and audio with access to a computer can claim to be a journalist implicating First Amendment rights,” he continued, implying that more people being protected by the First Amendment’s press clause is a bad thing.

Davis then argues that arresting officers couldn't distinguish Bliss and Coit from nonjournalists, despite the officers’ own body camera footage prominently showing Bliss’ press pass (see the photograph above). Perhaps most disturbingly, he notes that Bliss “has views aligned with” the protesters, as though the First Amendment excludes reporters who dare possess opinions. That would’ve been news to the drafters of the amendment, who lived in a time long before journalists even feigned objectivity.

Ultimately, the judge put aside his fist-shaking about those kids and their damned cellphones and assumed for purposes of his analysis that Bliss and Coit are in fact journalists (although it seems unlikely that his biases did not affect the rest of his thinking). But then …

The First Amendment should never be cited to criminalize more speech

It’s hard to believe we have to write that heading. But, remarkably, after begrudgingly conceding that Bliss and Coit may be journalists after all, Davis ruled that the First Amendment actually required police to arrest them along with protesters at the park. After all, he reasoned, the protesters could complain they were treated unfairly if journalists were given a pass.

That’s not how it works. The government can restrict First Amendment activity on public land only when it’s “essential” to serve an “overriding” interest, and the restrictions must be as narrow and targeted as possible. That means even rare circumstances entitling the government to restrict some speakers don’t entitle it to restrict all speakers. For example, police may sometimes be entitled to disperse protesters who damage government property, but that doesn’t mean they can also disperse journalists who pose no threat to the property. Davis fails to comprehend that it’s not about journalists having additional rights — it’s about the government having to separately establish a sufficient basis for each infringement of the First Amendment. But the journalists have never been accused of obstructing or harming anyone or anything and arresting them served no "interest" other than censorship.

Plus, police crackdowns on protests are themselves news and journalists can’t cover them if they’re in jail too. As the Department of Justice recently explained: “Blanket enforcement of dispersal orders and curfews against press violates [the First Amendment] because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.” Journalists have to follow the news — they can’t control what time police choose to arrest protesters.

Finally, it doesn’t matter if, as Davis speculates, Bliss and Coit could’ve reconstructed events after the fact through witness accounts. That same logic would allow trials and government meetings to be closed. Cops and judges don’t get to tell reporters how to report. The availability of an inferior Plan B doesn’t remove First Amendment protection for Plan A.

The ruling contains plenty of additional head-scratchers, like Davis’s reasoning, too convoluted to deconstruct here, that an officer’s instruction to arrest Bliss and Coit before others — “because they’re videotaping” — does not evidence police targeting of First Amendment activity.

Then the judge brushes aside admitted evidence of Asheville authorities’ hostility towards the Blade over its past coverage, focusing on whether the arresting officers recognized Bliss and Coit. That ignores evidence that the higher-ups who decided to waste taxpayer funds pursuing the misdemeanor charges for 1.5 years and two trials surely did. And let’s not forget additional unconstitutional retaliation, like banning the journalists from city parks.

The entire ordeal has been an assault on press freedom driven by the spite and pettiness of officials who know better. That’s why press rights and civil liberties organizations have widely condemned the prosecutions and convictions. We’re glad to hear the journalists will appeal. Let’s hope the appellate court ensures no future officials in North Carolina butcher the First Amendment like the clueless prosecutors and judges involved in the Asheville case.