Robin Smith, Staff Writer, The Orleans Record, orleanscountyrecord.com 27 January 2012
NEWPORT CITY – Defense attorney Philip White asked Judge Robert P. Gerety Jr. Thursday to set a precedent and say that journalists can follow police onto private property – whether or not the property owners approve.
White, representing Chronicle Publisher Chris Braithwaite, said in Orleans Superior Court-Civil Division that the public should know what the government is doing on private property.
Braithwaite, 67, of Glover was charged with unlawful trespassing Dec. 5 when he followed protesters to the Lowell wind site and watched as they blockaded the crane path and stopped construction vehicles. Six protesters were arrested and charged with unlawful trespassing.
Deputy sheriffs, who had asked Green Mountain Power if everyone should be arrested, told Braithwaite to leave the property or also face charges. He moved away from the crane path but stayed on the site to cover the arrests and then was also charged.
The six protesters and Braithwaite pleaded not guilty to the charges.
Braithwaite climbed with protesters to the ridgeline to cover their protest that day, as he had done before. The protesters intended to be arrested.
Braithwaite was the only reporter there.
White said if Braithwaite had left, there would only be second-hand information to describe the arrests and how they were conducted.
“Only by having objective observers present” would there be coverage of what government officers were doing, White said.
It protects “both property owners’ interests and protesters’ interests,” he said.
Braithwaite had not sought permission from GMP to go to the site. GMP had repeatedly announced that no one could go on the construction site without permission and then not without a short safety training course onsite and a hard hat, safety vest and the proper footwear.
Since the arrest, GMP invited Braithwaite to the site for training and invited other journalists to the site when protesters were present.
GMP has decided that Braithwaite is welcome on the site, White said.
“This case can be dismissed without doing any harm to anyone,” he said.
Gerety asked both White and Orleans County Deputy State’s Attorney Sarah Baker for other cases when freedom of the press versus property rights has been decided at court trial or by appeals courts.
The U.S. Supreme Court has ruled that the press does not have an exception when it comes to property rights.
“There isn’t a trend in the law to make exceptions in certain cases for the press,” Gerety said.
White, who is recovering from a broken shoulder, said he had not been able to do as much research as he wanted in preparation for the hearing.
“What I’m surprised by the facts similar to this case haven’t arisen in other courts,” Gerety said.
“Often there is accommodation made to the press” by police and property owners, White said.
He called this a special case, where the property is extremely rural.
Baker argued that White wants the court to create a right for the press to enter private property once police have been called in, saying “it’s a very dangerous precedent.”
She asked if a person who calls police because of a domestic assault would want the press to have the right to follow police into his or her home.
In this case, Baker said, Braithwaite did not have permission to be on the work site. “It was a work zone. He didn’t have the proper gear.”
GMP’s “interests include safety,” she said.
Both White and Baker agreed on the facts of the case, saying that the main issue is whether Braithwaite should be exempt from the charge of unlawful trespassing.
The six protesters are still facing their charges in court. They have said that they will demand a jury trial to have a full airing of their cases.
Gerety asked White to file a brief on any court precedents he can find by Feb. 10. And he gave Baker a week to respond.
Gerety said he would issue a decision shortly after that.
White wants Gerety to dismiss the charge with prejudice, meaning that the state could not refile the charge later.
URL to article: https://www.wind-watch.org/news/2012/01/27/chronicle-publisher-wasnt-trespassing/