A judge’s bizarre ruling on Blade reporters’ case asserts that journalists can be arrested for inconveniencing cops, and that the First Amendment even requires it. This sets a threatening precedent for reporters everywhere

On June 16 Asheville Blade reporters Veronica Coit and Matilda Bliss were convicted of second-degree trespassing after Judge Tommy Davis insisted the jury in the superior court trial was not allowed to consider First Amendment issues or press freedom as a defense. This was quickly condemned, rightly, by a range of civil liberties and press freedom groups.

On June 22, Davis filed a written ruling about why he denied the defense’s motion to dismiss the charges on the basis that the city ordinance was unconstitutionally applied. That ruling makes the verdict even more disturbing, as it asserts that the police can basically arrest journalists any time they find that it inconveniences their operations. Hell, it goes even farther and actually declares the First Amendment requires police to arrest journalists if they arrest protesters.

No, we’re not making this up.

Every reporter in the country, especially any who criticize the powers that be, should find this disturbing. What starts in the South never stays here. As we’ll get into more shortly, the ruling gives a legal facade to already-escalating crackdowns on journalism.

Importantly Davis never informed defense attorneys that the ruling was out; they only discovered it when getting records from the courthouse over a week later.

If that sounds strange, the ruling came at the culmination of a whole process as farcical as it was openly unjust. This started with city authorities and county prosecutors hell-bent on arresting and prosecuting journalists for covering the Dec. 25, 2021 crackdown on a houseless camp and protest. There was zero doubt why this happened, especially after body cam footage later showed officers repeatedly mocking our journalists and then arresting them “first, since they’re videotaping.” After Coit was arrested one officer even openly said he hoped it would intimidate Bliss to stop recording and leave.

They then secretly banned both reporters from all city parks for a year.

In the April bench trial Judge Calvin Hill ignored press protections and publicly doubted that the Blade reporters were journalists, something prosecutors hadn’t even tried to assert, when he found them guilty of second-degree trespassing. Hill even tried to sentence Coit to suspended jail time and a year supervised probation, which is illegal under a North Carolina law that mandates only a fine can be imposed for such a low-level charge.

In the lead-up to the jury trial the case initially looked like it’d go before Judge Jackie Grant, who expressed interest in hearing more about the First Amendment issues at stake. But she was, last minute, suddenly switched out for Judge Alan Thornburg, who berated the defense attorneys, denied them the ability to subpoena the officials who ordered the raid or others who could confirm the authenticity of public documents. This was unusually severe, so much so that even Davis would later express some frustration with how many witnesses Thornburg prohibited the defense from calling. Thornburg also insisted the trial start in less than a week.

This only worsened when the police department basically refused to acknowledge the defense’s subpoenas for the few officers Thornburg did allow them to call, insisting they refile them with the sheriff after the jury trial had already started.

That trial was overseen by Davis, a Republican brought in from Rutherford County, the third change of a judge in less than a week. This is incredibly unusual, but there seemed a clear attempt to prevent any judge who might be remotely sympathetic to press freedom from getting anywhere near the case.

Davis repeatedly said he considered it a trespassing matter — basically the prosecution’s line — and didn’t believe the jury had any right to consider the many constitutional issues in a case where two journalists were physically stopped from recording and hauled away in handcuffs. When defense attorneys tried to add a note to the jury instructions that the reporters could be acquitted if the jury found they were journalists carrying out their duties on public property, Davis refused. Despite this the jury still asked if they could consider the First Amendment in their verdict and Davis once again denied them, saying he would rule on any constitutional issues.

There’s more. Davis’ ruling lays out a series of excuses for police repression that are, bluntly, absurd. The Freedom of the Press Foundation, experts in this field, have rightly dubbed it “full of troubling biases and fundamental legal errors.”

The first is the stunning claim that it would have been “discriminatory” not to arrest two journalists first. Davis declares that the First Amendment actually required the police to arrest everyone in the park that night, protesters and reporters, asserting “this court has found no case indicating that a right to gather news takes precedence over an individual actually expressing themselves, or vice versa.”

To be clear, the APD should have arrested no one — they even violated their own policies that required a seven-day notice before clearing a camp on public land — but the idea that the reporters’ constitutional rights to monitor the police were somehow being respected by hauling them off to jail in the middle of covering an unquestionably newsworthy event is downright bizarre. But it’s an open excuse for cops to arrest journalists covering protests so they can’t report on the police’s actions, and that’s the real point of all this.

Davis’ ruling is, to put it mildly, out of keeping even with establishment interpretations of the First Amendment. The Freedom of the Press statement debunks his assertions at length:

“That’s not how it works. The government can restrict First Amendment activity on public land only when it’s “essential” to serve an “overriding” interest, and the restrictions must be as narrow and targeted as possible. That means even rare circumstances entitling the government to restrict some speakers don’t entitle it to restrict all speakers. For example, police may sometimes be entitled to disperse protesters who damage government property, but that doesn’t mean they can also disperse journalists who pose no threat to the property. Davis fails to comprehend that it’s not about journalists having additional rights — it’s about the government having to separately establish a sufficient basis for each infringement of the First Amendment. But the journalists have never been accused of obstructing or harming anyone or anything and arresting them served no ‘interest’ other than censorship.”

Ironically, the same day as the verdict a report by the Department of Justice — the literal feds — took the Minneapolis Police Department to task for the same behavior practiced by the APD:

“The First Amendment requires that any restrictions on when, where and how reporters gather information ‘leave open ample alternative channels’ for gathering the news. Blanket enforcement of dispersal orders and curfews against the press violates this principle because they foreclose the press from reporting about what happens after the dispersal or curfews is issued, including how police enforce those orders.”

Which was exactly what happened on Christmas 2021.

On that front, Davis wasn’t done, as he also asserts later in the ruling that the journalists’ rights weren’t violated because “the police did nothing to stop this conduct until actual arrest.” Yes, that’s a literal assertion that cops aren’t violating journalists’ rights if they can record right up until the moment they’re put in handcuffs and taken to jail. Under that rationale no authoritarian regime on earth ever violates journalists’ rights.

The ruling repeatedly takes prosecution assertions at face value even when they were disproven during the trial, like the assertion that there was only one houseless person in the camp (on the stand police officers admitted there were others) and that the journalists could have recorded from elsewhere. The latter claim was taken as fact despite it being repeatedly pointed out in body cam footage that because the camp was on top of the hill in Aston Park it was nearly impossible to see from outside the park.

This was backed up by a photo of Blade editor David Forbes taken this spring. She’s standing where the outskirts of the camp was, and the photo’s from the sidewalk police claimed the reporters should have moved back to.

She’s wearing her press i.d. and waving so she’d be more visible. Remember the above image was taken during the day, and the raid took place at night.

Incredibly, Davis also dubs the clear fact that the police targeted the two reporters for recording — again, one officer literally says Coit and Bliss should be arrested “first, since they’re videotaping” and others clearly pointed out press coverage as something they wanted to remove — as “speculation.”

The ruling also takes at face value the police’s assertions that they weren’t aware of the Blade despite APD officers prominently dragging Coit out of their car and arresting them in 2020 while they covered a protest. It likewise dismisses police commanders approvingly circulating an email from a far-right “neighborhood association” dubbing our publication a threat “we are trying to fight back” against in April 2021. Multiple officers’ transphobic remarks towards Bliss were also written off by Davis.

The fact the APD’s own officers, in an official September 2020 survey, declared “no scrutiny from media” and “knowing your decisions will not be scrutinized” as among their major goals is also ignored, even though it was part of the evidence presented at the trial.

In this ruling, the fact that police later used the excuse that arresting journalists first — which ceased their coverage of the ensuing arrests of those still in tents — simply because it was convenient for their operations is enough.

Disturbingly this is also in line with something prosecutors tried to push during the trial, that the Blade reporters should be counted as part of the protest group — despite having no role in organizing or planning the Aston Park actions and separately observing the police as journalists — because they expressed views sympathetic to their cause.

Davis wrote in his ruling that journalists spending hours covering a protest, knowing local activists and having a negative opinion of cops raiding a camp on christmas “blur the line” between press and protester. This contradicts numerous rulings and laws that declare journalists have protections regardless of their views. It’s not, after all, those who write things those in power like who are under threat.

But apparently reporters should instead be hermits who stay in total isolation unless emerging to write whatever the police chief wants them to write.

In its bizarre logic and open excusing of the abuse of power this ruling joins those we’re seeing around the country, from the Supreme Court all the way down, that break the facade of “the rule of law.” These reveal plenty of judges are simply concerned with coming up for excuses for an inexcusable status quo. We are, thankful, at least, that more people are waking up to this reality.

This is also part of a disturbing trend of Asheville city hall cracking down on dissent. After the Dec. 25, 2021 raid the APD arrested 16 mutual aid workers and protesters on false “felony littering” charges for having supplies in a public park.

They even pursued, illegally, a search warrant on Bliss’ phone to try to find more evidence for those retaliations, despite that being prohibited under federal law. Their excuse was that Bliss is an anarchist who ran a public social justice events calendar.

Again, we’re not making this up.

The crackdown on the mutual aid workers was so clearly just petty cruelty that even Asheville’s own solid waste manager wrote to the city manager that “clearly, these folks weren’t littering” and that when actual felony littering by companies and developers had happened in the past the APD had always refused to prosecute.

The ACLU has now added a claim of retaliation to its lawsuit over the unconstitutional three-year park bans city hall hit mutual aid workers with.

It’s not just Asheville. In Atlanta, as well as here, we’re seeing prosecutors consider any organizing that challenges the state automatically an illegal conspiracy and anyone who interacts with that — concertgoers, jail support groups, or leftist reporters who interview protesters and criticize the cops — as automatically part of it.

These are the excuses of a police state, nothing more.

And that, readers, is why this ruling makes the persecution of our journalists even more disturbing than it was before. Under this rationale journalists essentially have no rights if they inconvenience the police, if a crackdown happens after dark or if they express views the cops think are too similar to a protest they don’t like.

That means, in practice, they have no rights at all.

We are, of course, appealing this ruling. Coit, Bliss and our entire co-op remain determined to fight on. We have no illusions about the justice system, and this has reaffirmed its reality: a deeply corrupted structure that will even break its own rules to reward the powerful and punish dissent.

Journalism is illegal in Asheville, N.C. Unless this is stopped, it won’t end here.

In defiant solidarity,

The Asheville Blade Co-op

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