February 16, 2012
Vermont

Lowell wind: Defense argues press can trespass

Robin Smith, Staff Writer, The Orleans Record, orleanscountyrecord.com 15 February 2012

NEWPORT CITY – The Chronicle Publisher Chris Braithwaite’s decision to follow protesters onto the Lowell wind site is similar to how reporters covered a 1979 protest at a nuclear power plant under construction in Oklahoma, according to Braithwaite’s attorney.

Nine reporters were arrested at that time for trespassing, along with hundreds of protesters at the Black Fox Station plant, said Philip White.

On Dec. 5 on the Lowell ridgeline, deputies arrested Braithwaite along with six protesters when they refused to leave the wind construction site on private property leased by Green Mountain Power. Braithwaite and protesters calling themselves “the Lowell six” are facing charges of trespassing.

Braithwaite, White said, should be protected from criminal charges because he was a journalist covering the protest and the police reaction to it – on property that should be considered quasi-public.

The split decision arguments by the appeals court in Oklahoma nearly three decades ago involving press coverage of the nuclear plant protest are relevant today in the Lowell case, White said.

White filed a memo in Orleans Superior Court–Criminal Division to show that there is case precedent where a judge has found that reporters do have a right in some cases to go on certain private property to cover a news story.

The memo is in reaction to Judge Robert P. Gerety Jr.’s request last month that both White and the state’s attorney’s office do some research and find case law to back up their arguments.

White also argues that the framers of the Vermont Constitution intended for the press to cover government activity, anywhere.

Gerety is expected to rule later this month on whether the charge against Braithwaite should be dismissed.

Meanwhile, the trespassing charges against the six protesters continue toward trial at court in Newport City.

Gerety already dismissed contempt of court charges against two Sterling College students. Unlike the Lowell six, who intentionally went onto the wind construction site, the students were charged after being found by deputies on neighboring property near the wind site in a blast safety zone.

The judge dismissed those charges, saying that the state couldn’t prove that the students were intentionally in contempt of a civil court injunction barring protesters from the blast safety zone at certain times.

White said the court ruling involving protest at the nuclear power plant is similar to the Lowell protest.

A trial court in Oklahoma found the nine reporters guilty of trespassing at the nuclear power plant during the protest in 1979.

A three-judge appeals court weighed in with a split ruling in 1983. The majority found that the reporters didn’t have a right to go on the nuclear power plant’s property.

“Two justices ruled that the First Amendment does not provide the press with any ‘right of special access not available to the public generally,'” White wrote in his memo.

But the dissenting judge disagreed, according to the case law filed in Orleans Superior Court by White.

“Justice Brett issued a dissent that included an analysis of the issues very similar to the analysis presented on behalf of Defendant Braithwaite in this present case,” White wrote. “The dissent engaged in a balancing of competing interests and concluded that the First Amendment right of the press to gather information regarding this particular newsworthy event was compelling and should prevail over the relatively minimal interests of the state in enforcing the property interests of this quasi-public utility.”

Brett called the nuclear power plant construction site a quasi-public property, noting that it was owned by a heavily regulated group of utilities with some state ownership.

White did not argue about whether the Lowell wind site – private land leased by a state-regulated private utility company – is also a quasi-public property.

â?¢ Whether the right of the press to go on quasi-public property to cover an ongoing political demonstration is in technical violation of a criminal trespass statute?

â?¢ Whether enforcement of criminal trespass laws against reporters should be limited because of the constitutional right to freedom of the press?

Brett looked at the facts in the nuclear protest case, similar to those in the Lowell case, and concluded that the nine reporters were indeed illegally trespassing against Oklahoma law.

In the nuclear protest, the reporters were allowed on the property but not near where the protest was occurring, Brett noted. The nuclear plant owners were trying to limit press coverage of the protests, he said.

Brett argued that freedom of the press must be considered against private property rights in what he called “non-traditional public forums” such as the nuclear plant construction site.

“Property interests on quasi public property are not absolute,” Brett argued.

White in his own memo didn’t argue that GMP intentionally was trying to hinder press coverage by limiting access to the site.

However, in practice, that is what happened at the Lowell wind site. There were only two ways to get there – by hiking to the site up the mountain without permission from GMP or by a guided tour from GMP.

GMP did offer tours to journalists and others before the protest that led to Braithwaite’s arrest, but they were not timed to coincide with protests.

After the arrest, GMP did invite reporters to the ridgeline site during a protest when police were called. However, the protesters left before reporters or police arrived at the construction site.