Video + Story: First Amendment experts split on Barton Chronicle publisher’s arrest

Editor’s note: This story by Robin Smith first appeared in the Caledonian-Record.

The Orleans County journalist who was arrested Monday while covering a protest at the wind construction site in Lowell doesn’t have any special protection under the law, press experts said this week.

Green Mountain Power asked law enforcement to arrest anyone trespassing during the blockade that stopped construction Monday morning on the Lowell ridgeline. Sheriff’s deputies arrested seven people: six protesters who wanted to be arrested; and Chris Braithwaite, publisher of The Chronicle of Barton. They face charges of unlawful trespass.

The Vermont Press Association defends Braithwaite’s efforts to cover the protest.

However, freedom of the press does not trump private property rights, said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press.

Donald Kreis, a Vermont Law School professor, agrees.

“Green Mountain Power has an absolute right to determine who gets to go on that site. Period,” Kreis said.

Braithwaite has followed the protesters for weeks as they have sought to hinder or stop the construction. He covered the protests so closely he has almost been an “embed” — like an embedded war reporter. He has written signed editorials opposing the wind project.

Braithwaite was told about the surprise plan to blockade the crane path on the ridgeline. He joined the protesters at 6:30 a.m. to climb the mountain. He crossed the tape marking the wind site property and began covering the blockade.

When Orleans County Chief Deputy Philip Brook and another deputy arrived, Braithwaite said he stepped aside from the protesters but stayed on the property. The deputies, who knew Braithwaite, told him that he had to go beyond the tape or face arrest.

GMP officials and deputies maintain that Braithwaite could have covered the arrests while on nearby property.

Braithwaite said he would have been too far away. He was the only journalist there. Other local reporters had not been told in advance about the protest.

When told to leave or face arrest, Braithwaite walked over to stand with the protesters. He was detained with them and cited. The seven face arraignment Dec. 20 in Orleans Superior Court–Criminal Division.

His attorney, Phil White, said Thursday that Braithwaite will plead not guilty.

“He also intends to assert his right under the First Amendment of the U.S. Constitution and under the Vermont Constitution to cover this protest as a member of the press,” White said.

Maria Archangelo, Vermont Press Association president, said Braithwaite was clearly working as a journalist.

“In our country the press is allowed to do that. The fact that he tried to explain his role to the deputy and that he had moved away from the protesters and was not obstructing any work being done, is further evidence of his position,” Archangelo said. “It is up to the authorities to respect the right of the press to report fairly and accurately on news events.”

But the protest was on private property, the experts say.

“There is no First Amendment right to violate a law of general applicability,” Dalglish said.

Once GMP invoked the right to stop trespassers, Braithwaite did not have the right to stay, she said.

The U.S. Supreme Court, in the early 1990s, determined that the First Amendment freedom of the press does not provide protection from trespassing on private property, she said.

Kreis, a former journalist at the Vermont Law School who is associate director of the Institute for Energy and the Environment, said he has personally trespassed on the Lowell wind site — but he wasn’t caught at it.

He went there Nov. 11 to see the site for himself, hiking up to the ridgeline with a protester.

“That land is posted,” Kreis said. “I made a deliberate decision to cross the tape and look at it and take pictures. I am guilty.”

But he hasn’t been charged. Kreis said he left, as he intended to do, before anyone saw him or asked him to leave. There was no blasting, work vehicles or construction where he was standing.

To be charged with trespassing, you must receive a verbal or written notice that you aren’t allowed there, Kreis said.

“Once you’ve been put on notice,” and you don’t leave, you can be charged, he said.

Traditionally in New England, local reporters have been given more access to cover fires and incidents, Kreis and Dalglish said. Police and firefighters know local reporters and trust that a reporter won’t do anything dangerous or get in the way, he said.

In Vermont, said Archangelo, professional journalists and the authorities “have been able to work out their relationship in an event like this. I am concerned about why that did not happen.”

But in the past 10 to 15 years, police are less and less likely to give reporters special treatment, Dalglish said. “Law enforcement are just running out of patience.”

So many people have a cell phone with a camera, she said. Police don’t know who is a journalist and who is not at the Occupy Wall Street protests, for example, she said.

Dalglish said she warns new journalists to be wary.

Police don’t take the time to identify journalists, she said. “They just grab everyone and deal with it later. I’m sorry, but that’s the way it is.”

“If I were Green Mountain Power, I would welcome the presence of the press,” Archangelo said. “The presence of an outside observer is important to provide an objective report on what is happening at this remote site. It serves as a check on the authorities and the protesters.”

A handful of reporters, including The Record and The Burlington Free Press, have been to the construction site this fall, Schnure said.

They, like all visitors, have received a safety seminar, safety vest and hardhat and had to wear appropriate footwear.

No one asked for permission to be at the site the morning of the protest, she said.

GMP asked the deputies to arrest anyone who refused to leave.

Brooks said that he asked GMP if anyone had permission to be there.

No one did, Schnure said.

Schnure said GMP doesn’t want to arrest anyone. But the wind project has a certificate of public good and will be built, she said.

Reporters who embed themselves into a story do run an ethical risk, Kreis said, speaking from his experience as a reporter with The Associated Press and other media before going to law school.

He heard Braithwaite talk about the situation on Vermont Public Radio this week.

“He made himself part of the story,” Kreis said.

That can run afoul of journalism ethics, he said.

“It would have displeased my editors,” Kreis said. “I probably would have been fired from AP.”

Disclosure: Don Kreis is a member of the Vermont Journalism Trust, the parent organization for VTDigger.org. Steve Terry, a longtime executive with Green Mountain Power is also a member of the Trust board. Chris Braithwaite’s articles about Green Mountain Power’s Kingdom Community Wind Project on Lowell Mountain have appeared on VTDigger.org.

Comments

  1. Renée Carpenter :

    “He said, she said” doesn’t always make it right. Perhaps you’ll run a deeper piece teasing out these issues more clearly, including a deeper analysis of why, suddenly, journalists have lost respect in violation of First Amendment protections. It’s easier to understand when it happens elsewhere; NOT in Vermont.

    Nowhere do you note concern that ownership of the property posted for trespass, being leveled by Gaz Metro, and protested by citizens, is contested land in the courts. Normally, according to legal experts, these issues would be resolved BEFORE a project could move forward. This is part of the citizen protest–the context of the story.

    Corporate-government collusion for any goal, even if it can be framed as “for good reason” is a violation of basic democratic principles. Either we are a democracy or we are not. Which is it?

  2. Duncan Kilmartin :

    Ah, as usual the legal experts are tilting at windmills, without knowing the facts.

    Forget the First Amendment for Chris or anyone else. For those who have done painstaking research on the repsective titles, it appears that Don and Shirley own the area where Chris and the protesters were located.

    The Orleans County State’s Attorney has to prove who has title to this area beyond a reasonable doubt, which will involve lawyers testifying as experts, surveyors, and Trip Wileman (who owns the property, not GMP which only has a license/easement), and others testifying. This will or should all take place before an Orleans County jury.

    But wait, this is too important for the hometown folks to judge Chris, GMP, Trip Wileman, the quality and persuasiveness of the work of Paul Hanan, surveyor, for Don and Shirley, and that of Blais/Horizon, for EnXco/Vera/Wileman back in the late 90′s, early 2000′s, and more recently for GMP!

    GMP will protest that the folks in the Kingdom are not their peers, do not have the intelligence and sophistication of GMP’s Montreal masters, and are so biased and predjudiced that the trial should be moved to Chittenden County. If that won’t fly, GMP will offer the Orleans County State’s attorney resources to put Chris and the protesters in their place.

    A comment on the Orleans County Sheriffs Dept. and other Sheriffs working for GMP.

    It reminds me of the auto workers organizing efforts in the 20′ and 30′s, where law enforcement and judiciary became the courtesans of the auto makers. Guess what? Trespass was the crime of choice then.

    Two differences between then and now: there is a legitimate dispute as to who owns the land which eviserates any basis for trespass; no one got blood on their hands in the arrests on Lowell Mountain, but only because Chris, Ron, and others, as did Phil Brooks, act civilly toward each other.

    So, don’t get sidetracked by all the “legal experts” and the media’s misplaced focus for “one of their own”.

    If Chris and the others get a speedy trial before an Orleans County jury of their peers, it will be most interesting if they decide, on the facts, whether Don and Shirley own the land, or Trip does. I doubt Mary, Dorothy, Charlie or their Montreal masters like the odds.

    That has nothing to do with elevating Chris to some journalist’s special status to get a free pass. Knowing Chris, I doubt he wants or feels the need of it, especially in view of the probable fact that GMP and Wileman have illegally appropriated the land of Don and Shirley Nelson.

  3. Doug Kramer :

    It will be pretty interesting if Mr. & Mrs. Nelson are found in court to own the “disputed” land. Do they then own the wind turbines? And the power generated? Will they be able to sue for removal and restoration? Just a few thoughts . . .

  4. Frank Davis :

    Can anyone speak authortatively on whether there is a legitimate dispute as to who owns the land. My recollection is that I have read articles that this is an issue settled years ago. That Trip Wileman was determined to be the owner. Isn’t this a closed matter? A question occurs to me involving the arrest of a journalist. Is being a journalist, or declaring that one is a journalist, sufficient to stop a police officer from following the terms of a court order? “I am a reporter, I am not subject to a judge’s no trespassing order.” Would a journalist’s obvious and demonstrated lack of objectivity on an issue indicate that they are no longer reporting the news but intending to create it? Does that then remove one’s status as a member of the constitutionally protected press?

    • The Judge’s court order expired a week ago Friday. The people who were arrested were not subject to the Judge’s injunction. The only issues in play are the question of trespass. Who is trespassing? Are the people who were on the land the Nelsons say they own, and which is before a court, trespassing if they are on the Nelsons’ private property? Is GMP trespassing on the Nelsons’ property? Who is taking sides? The police or the reporter?

    • Trip Wileman :

      Frank, see my other comments below. However, in answer to your specific question, Nelson signed the 2002 survey, agreeing to the location of the property line shown thereon. This was done because a portion was not ascertain able at that time (although another portion was based upon long standing evidence, now being dismissed by Nelson’s surveyor). Notably, an adjacent long standing line was ignored by both Nelson and I because we felt it was incorrect, as it would have given ME too much land.

  5. Larry Johnson :

    Trip and Duncan,
    Seeing that you both have chimed in, how about a straightforward answer to this question? Trip, do you or Duncan, do the Nelson’s own the land in question?

  6. Trip Wileman :

    The land is owned by Moose Mountain Forestry, LLC.

  7. Trip Wileman :

    I might also add, that despite years of talk (as far back as 2002), including promises of imminent legal action for the past two years (in PSB filings), Nelson has done nothing. Now he seems content to let others invite criminal prosecution, seemingly comfortable in the knowledge that he will suffer none of the consequences.

  8. The matter is before Orleans County Superior Court Judge Martin Maley. The issue was brought before him prior to GMP blasting the disputed land. In the interests of due process, the Judge could have heard the land dispute case before allowing GMP to blast a 25 foot cliff in the land. But he seems to have determined that no matter who owns the land, GMP has all the rights and the Nelsons have none.

    Yes, this a legitimate dispute, one that GMP had the obligation to resolve prior to beginning construction. The Vermont PSB said in its CPG that it was up to GMP to determine that it had the legal rights to the land. The corporation chose to use the court system and police powers to get its way rather than go through appropriate legal avenues afforded it through the PSB process.

    The photo on the top right column of the blog http://lowellmountainsnews.wordpress.com/ was taken in the area that the Nelsons say they own.

  9. Trip Wileman :

    The Nelsons filed a counter claim against GMP, notably not naming the landowner as a party, to argue against issuance of the temporary restraining order (to stop protesters risking injury or death to interfere with GMP’s blasting). The counter claim was unsuccessful, the TRO stood, and the blasting in the area is now complete. Thus the counter claim would seem mute.

    • Ryan Gillard :

      I have heard several mixed answers to the question “What’s the real deal with the dispute” (e.g. Judge Maley is sitting on the issue of the dispute; there has been no legal dispute made; the only dispute was made in the counter-claim and since that was rejected the judge has made the ruling on land etc.). Can anyone direct me to a legal document or piece of media that speaks to a pending decision or made decision? Thanks.
      Ryan

  10. edd foerster :

    Ms. Smith, we know you oppose this wind project. But what are your qualifications to weigh in on the issue of who owns this land and what the correct court procedure is? Do you have a law degree? We do, of course, know that you get paid to oppose this project.

  11. Ryan Gillard :

    I have heard several mixed answers to the question “What’s the real deal with the dispute” (e.g. Judge Maley is sitting on the issue of the dispute; there has been no legal dispute made; the only dispute was made in the counter-claim and since that was rejected the judge has made the ruling on land etc.). Can anyone direct me to a legal document or piece of media that speaks to a pending decision or made decision? Thanks.
    Ryan

  12. Trip Wileman :

    Annette -

    I did not see the Orleans Court’s latest ruling. Did I overlook it? The “filings” did not appear to include all the rulings.

  13. Ryan Gillard :

    Trip-
    What were the latest rulings? Do you know where documents including the rulings can be found?
    Thanks.
    Ryan

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