Upcoming trial of journalists only tip of anti-press iceberg in Asheville
Seth Stern
June 7, 2023
Body camera footage released following a court petition by Freedom of the Press Foundation and the ACLU of North Carolina shows that Matilda Bliss was wearing a press badge when arrested on Christmas night of 2021. They also repeatedly told police they were a journalist. But a warrant application omits that fact, enabling authorities to search Bliss's phone in apparent violation of federal law.
We’ve written plenty about the case against Asheville Blade journalists Veronica Coit and Matilda Bliss for covering an eviction of a homeless encampment. The prosecution’s theory — that, by scheduling a highly newsworthy operation at a public park for after closing time, police can operate in secret and arrest any journalist who attempts to record them — is absurd and alarming. A coalition of almost 50 press rights and civil liberties organizations and media publishers has condemned the charges.
But it appears the prosecutions (the journalists are scheduled for a jury trial on June 12) may only be the tip of the iceberg when it comes to Asheville authorities’ hostility to press and speech freedoms. Bliss recently obtained a copy of a nearly 1.5-year-old warrant to search their phone, which was seized during the 2021 Christmas night arrests. It’s clear from body camera footage that arresting officers were well aware that Bliss and Coit were members of the press, but the warrant application conspicuously fails to mention that fact. Why leave it out?
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Perhaps because the federal Privacy Protection Act of 1980 prohibits investigators from searching journalists’ equipment for evidence of alleged crimes by others that they obtained in the course of newsgathering, which is exactly what the warrant application sought to accomplish. Without knowing Coit and Bliss are journalists, the judge couldn’t apply the PPA and refuse to issue the warrant. The Blade pointed out that Asheville authorities can’t claim ignorance of the PPA — here’s the City Attorney, Brad Branham, discussing it in reference to this same case.
Could the omission have resulted from incompetence as opposed to malice? Sure — there appears to be plenty of both to go around in Chief David Zack’s department. But Asheville police and prosecutors have squandered any entitlement to the benefit of the doubt.
Case in point, the warrant application cites Bliss’s alleged links to “extremist anarchist groups” as justification for the illegal phone search. The primary evidence of Bliss’s “extremism” is posting to a publicly available social justice event calendar. Of course, it’s perfectly lawful to be an anarchist — and to attend and publicize social justice events — and the warrant application does not contend that Bliss was involved in anything illegal. But, apparently, the police department considers any views they don’t like “extremism.” It’s seriously concerning, and blatantly unconstitutional, for the government to treat merely holding unpopular political views as a sufficient basis to justify surveillance of journalists — or of anyone, for that matter.
Blatant unconstitutionality appears to be the order of the day in Asheville. Bliss and Coit recently learned that, after their arrests, police, operating outside the judicial system, banned them from city parks for a year. To the best of our knowledge, no court has ever considered the constitutional implications of police officers extrajudicially banning journalists from public land for doing their jobs, because no prior police department had the chutzpah to try it. But if the tactic ever got in front of any decent judge they would presumably find not only unlawful retaliation for First Amendment speech but an unconstitutional prior restraint — “the most serious and the least tolerable infringement on First Amendment rights.” The ban goes a step further than traditional prior restraints barring publication by barring journalists from even finding news to publish.
And park bans seem to be a favorite tool in Asheville’s speech suppression tool kit. Police also banned several mutual aid workers and protesters from city parks after charging them with “felony littering” for bringing supplies and other items to demonstrations at the same homeless encampment. Those bans are the subject of a lawsuit by the ACLU of North Carolina. Even the city’s own Solid Waste Manager expressed dismay that authorities would employ the obscure felony littering law against local do-gooders while consistently ignoring the kinds of large scale illegal dumping it was actually meant to address.
Rather than heeding the overwhelming calls to drop the case against Coit and Bliss and reckon with their disturbing pattern of anti-speech behavior, officials plan to proceed with the June 12 jury trial. The journalists moved to dismiss the case, arguing that police scheduled the sweep, “which they knew to be controversial and of great public interest, for 10 p.m. on Christmas night specifically to weaponize the curfew against reporters."
A judge declined to throw out the case before trial, opting to let the trial judge determine whether the First Amendment permits prosecuting journalists for breaking the city’s park curfew when it's the only way to cover the news (officers admit reporters could not have observed them from outside the park). The trial judge should dismiss the case, and the journalists should sue — although we don’t envy the lawyer who has to fit so many First Amendment violations into one court complaint.