Asheville journalists seek to have trespassing convictions overturned

In a brief recently filed with the state Court of Appeals on behalf of two journalists convicted of trespassing while covering police actions in Asheville, the director of Duke University School of Law’s First Amendment Clinic called the convictions “a dangerous step toward the evisceration of freedom of the press in North Carolina.”

Journalists charged with trespassing while reporting are rarely taken to trial. In the past 10 years, at least 21 reporters across the U.S. were arrested for trespassing. Five of those cases were taken to trial. And two of those five were Veronica Coit and Matilda Bliss. [NC Newsline reporter Joe Killian was arrested in 2016 while trying to cover the actions of the General Assembly when police arrested demonstrators in the House gallery along with any other individuals who declined to leave. He was not prosecuted.]

Bliss and Coit, two reporters for the Asheville Blade, were arrested on Christmas night 2021 for covering police as they broke up a protest in Aston Park. After their arrests, more than 45 news organizations called on Buncombe County District Attorney Todd Williams to drop the charges.

“But the City pressed on, resulting in convictions that are not just legally erroneous, but fundamentally at odds with First Amendment doctrine,” Sarah Ludington, a law professor and the First Amendment Clinic’s director, wrote in a brief filed with the Court of Appeals on March 22. “This Court should correct that error and ensure that freedom of the press remains a bulwark of liberty in North Carolina.”

Bliss and Coit were convicted in a bench trial in district court, then again in an appeal in a jury trial in Superior Court. Prosecutors and police portrayed the criminal charges as an open-and-shut case of trespassing, since the reporters were in the park after it had closed for the night. Bliss and Coit’s attorney, meanwhile, argued the reporters were arrested as retaliation for their reporting and their news outlet’s political ideology, which is in favor of defunding and abolishing the police.

Buncombe County prosecutors haven’t always sought convictions when reporters get arrested. In 2016, police arrested a reporter for Mountain Xpress who’d been covering a sit-in at the Asheville Police Department after officers killed a Black city resident. The District Attorney’s Office dropped the charges a week after the arrest.

In her brief, Ludington noted that the Blade “routinely criticizes” the city government and its police. She pointed to police body cam footage from the night Bliss and Coit were arrested. As police were determining how to break up the protest, an officer asked a colleague, “Why don’t we deal with the standing first, since they’re videotaping?” At another point in the evening, another officer says, “Here’s your other member of the press. Wonder if [she’s] going to wise up.”

Thomas Davis, a Republican Superior Court judge from Rutherford County, presided over the jury trial last June. After they went into deliberation, the jury had a question for the court: could they consider Bliss and Coit’s status as journalists while they were considering whether to convict them of trespassing?

Davis told the jury they hadn’t been instructed on the First Amendment’s applicability to this case, and that Bliss and Coit’s free speech rights would be decided by the court, not a jury. But Davis also told them “you are entitled to consider all the evidence in this case.”

The jury returned a guilty verdict shortly thereafter.

Ludington wrote in her brief that Davis’ wording was confusing, and could have incorrectly conveyed to jurors that they were not allowed to consider Bliss and Coit’s job as reporters or the First Amendment in their deliberations. 

Even aside from the jury instructions, Ludington argued in the brief that the First Amendment protected Coit and Bliss because all they were doing that night was gathering the news, fulfilling their vital role of holding police accountable for their actions. Public parks are historically open to the public and press, Ludington wrote, and journalists are essential to making sure the police aren’t abusing their power.

“Defendants’ convictions violated the First Amendment,” Ludington wrote. “Their convictions should be overturned and the charges against them dismissed. In the alternative, the trial court’s jury instructions were likely to have misled the jury and prejudiced the verdicts, warranting a new trial.”