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.

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