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First and the Fifth Amendments interplay in Lowell wind court cases  

Credit:  By Robin Smith, Staff Writer | The Orleans Record | orleanscountyrecord.com 19 September 2012 ~~

The U.S. Constitution was written 225 years ago but remains the nation’s most relevant document.

In the Northeast Kingdom, headlines this year have captured vividly how the Constitution has figured in the protests and the resulting court cases revolving around the Lowell wind project.

For many, it’s been a front-row seat for a lively clash of rights under the U.S. Constitution – property rights versus freedom of speech and freedom of the press, and property rights versus the right to assemble.

Some of the clashes are still playing out in court, and the end results are unclear.

But the role of the Constitution is dominant.

The cases of the Lowell wind protesters and one of the journalists who covered a protest show that there can be inherent limits on rights even though they are enshrined in the Constitution.

The interplay of the First Amendment, guaranteeing freedom of speech, assembly and of the press, and the Fifth Amendment, guaranteeing property rights, has prompted interesting discussions around many a dinner table in the NEK this year.

The old argument goes that you have the right to freedom of speech under the First Amendment to the U.S. Constitution, but you don’t have the right to yell “fire” in a crowded theater.

Someone could die in the mad panic to escape what would turn out to be a hoax.

That’s a limit to free speech. Lowell wind protesters discovered another limit to freedom of speech and the right to assemble

Protesters took to the street in Lowell in mid-summer, blocking traffic on Route 100 to protest the delivery of some of the first wind turbine parts to the staging area of the Lowell wind project.

They stopped traffic for hours.

It is a public roadway. Police said they had the right to protest but not to block traffic.

Their First Amendment right of freedom of speech and right to assemble interfered with the life and liberty and pursuit of happiness by others who needed or wanted to use that roadway that day.

In court, the brothers who were arrested and charged with disorderly conduct admitted they did it, pleaded guilty. One paid a fine and the other will serve a day in jail.

That was the price for freedom of speech on a busy public road.

Last December, another protest rally played out on the Lowell ridgeline.

A group of protesters blockaded the crane path on the ridgeline and stayed there waiting to be arrested by deputy sheriffs.

Their intent was two-fold, they said later. They wanted to take their fight over the wind project to a wider audience at trial. And they wanted to challenge Green Mountain Power’s property rights over land the utility has leased to erect 21 industrial turbines, saying that the land was actually owned by neighbors Don and Shirley Nelson.

The battle led to a trial this summer where a jury of 12 people found the six guilty of trespassing. They had the right to a trial by a jury of their peers under the Constitution.

Their attorney is trying to have that verdict overturned.

But it was clear that the jury, controlled by neither the protesters nor the state, looked at property rights as something to be protected – even if a big corporation is the entity receiving that protection.

The jury seemed to follow the idea that possession is nine-tenths of the law – opting not to take into account the fact that the Nelsons are fighting in civil court with GMP and the man who leased the property to GMP. They left the property dispute in civil court.

And then there is the case of a journalist who followed the protesters onto the wind site without permission of GMP to cover the protest last December.

GMP said everyone was trespassing, because no one at the protest had permission to be there in advance. Chronicle Publisher Chris Braithwaite found himself in the position of either stepping beyond the property line as marked by GMP – and out of range of seeing how the arrest was conducted – or being arrested himself.

He opted to be arrested, and now faces a charge of trespassing.

His attorney Phil White is arguing that Braithwaite had a right as a journalist to go on the private wind site – which has been approved for operation by a governmental agency – to see how another arm of government (the police) were handling protesters.

“The defense of Chris Braithwaite and the Chronicle invokes the constitutional right of the working press to cover the actions of government when the police are called in to make arrests on private property,” White said Tuesday.

Press experts have warned that there is constitutional precedent from the U.S. Supreme Court that says that journalists don’t have the right to go onto private property to cover protests.

White is expected to press Braithwaite’s case at trial, another window into the workings of the U.S. Constitution.

Source:  By Robin Smith, Staff Writer | The Orleans Record | orleanscountyrecord.com 19 September 2012

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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