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Editorial: When Working Reporters Get Arrested, the Public Loses

No task is more fundamental to the journalistic enterprise than describing that which the reporter has seen and heard for herself, bearing witness to events both large and small. Reporters and photographers all over the world have asserted the right to be there — to see for themselves — as events unfold, and they sometimes have paid a steep price for doing so.

In this context, the recent dismissal of a trespass charge against the publisher of the weekly Barton Chronicle in Vermont is welcome vindication, although one wishes the terms could have more explicitly established the right of journalists to be present where news is being made.

Chris Braithwaite, the Chronicle’s 68-year-old publisher, was arrested last December along with six protesters on Lowell Mountain, the site of a controversial wind development project undertaken by Green Mountain Power in the Northeast Kingdom. The six protesters were found guilty of trespass in jury trials in August, but the Orleans County State’s Attorney’s Office was not content to let it rest there. It also pursued a trespass charge against Braithwaite, contending that he had no more right to be on the property than the protesters.

Braithwaite, as he said at the time, was convinced that his conduct “satisfied the dictates of common sense and the ethics of journalism.”

Thus a jury trial scheduled for this week set up the possibility that a court might delineate the legal boundaries within which journalists operate when they cover news events on private property.

In the end, that didn’t happen. The State’s Attorney’s Office dropped the trespass charge last week after Braithwaite’s lawyer filed a motion to dismiss that was based on internal Green Mountain Power documents that he had subpoenaed. These documents remain sealed, but the Caledonian Record obtained messages between GMP officials explicitly directing that reporters covering the protest should not be arrested.

“Arresting reporters will do more harm than good,” GMP Vice President Robert Dostis emailed to a correspondent named “Charlie,” according to the Caledonian Record.

That’s certainly an attitude we hope other companies and property owners share, but it doesn’t settle the question of recognizing a right of reporters to be present at news events.

As Braithwaite’s lawyer, Philip White, put it: “Any time a reporter is arrested while covering the government’s arrest of protesters, it is a serious matter. It raises fundamental concerns about the freedom of the press to act in its constitutionally recognized role ... .”

Indeed, barring reporters from protests deprives readers and viewers of independent description and assessment of what transpired, leaving police and protesters to spin competing narratives. Moreover, how the government deals with demonstrators is a fundamental test of how it functions and must be subject to public scrutiny to ensure accountability.

White said that had the case gone to trial he had hoped to argue that when First Amendment rights clash with property rights, a balancing test must be applied.

“The argument would be that the importance of being able to cover that (event) would outweigh the infringement of GMP’s property rights,” Braithwaite said.

While that might seem obvious to those of us in the newspaper business, it might well be a foreign concept to many corporations and law enforcement personnel. Absent a court ruling, the Legislature ought to consider clarifying the matter and affirming the importance of the press being allowed to do its job.