A West Virginia judge Monday dropped all charges filed against the publisher of a West Virginia monthly paper who photographed a worker inside a polling station during an election, according to court documents.
Thomas Harding, publisher of The Observer, published a photograph to the paper’s website taken of a poll worker, Rhonda Lehman, inside a voting station in November. West Virginia Secretary of State Natalie Tennant filed charges against him in response to complaints made by Lehman and others who saw that the photo had been published.
Harding said he went to the polling station to vote on a zoning referendum compelled by a petition drive organized and publicized by Lehman. When he saw that she was also acting in the capacity of chief poll worker at the voting booths, he decided to take a photograph. The photo did not include a voting booth, ballot or anyone other than Lehman performing her duties, according to court documents.
The secretary of state charged Harding with violating a state regulation requiring that “Legitimate news media personnel with proper credentials may remain within the three hundred foot area while conducting their official and legitimate news-gathering business, including exit polling, but may not enter the polling place or the building housing the polling place.”
Non-journalists are permitted to photograph inside a voting station in West Virginia, said Jake Glance, spokesman for the secretary of state, as long as they do not photograph a ballot or someone voting.
The distinction between legitimate journalist and non-journalist citizen depends on a person’s reason for attending the polling station, Glance said.
“If you go in there to vote, you’re allowed to be in there. You vote and you leave. If you go in there as a journalist and you vote, and you hang around there and take a picture while you’re in there, you’ve changed the reason why you’re there,” he said.
In their memorandum in support of a motion to dismiss, Harding’s lawyers argued that the state’s law barring reporters from polling stations was discriminatory toward journalists, precluding them from fulfilling their purpose of informing the public.
The law “is unconstitutional on its face because it is overly broad and unduly restricts the media's First Amendment rights,” the memo said.
“He did what any private citizen can do,” said Stephen Arnold, Harding’s lawyer.
A judge granted special prosecuting attorney Dan James’ motion to drop all charges against Harding on Monday.
In an email sent to Harding from the office of the secretary of state Tuesday morning, the prosecution said there were two potential legal challenges in prosecuting him under the state’s regulation.
For one, the regulation singles out journalists and does not apply to other people, the email said. Secondly, “the regulation arguably creates a criminal offense — which can only be created by state code, not by regulation.”
Harding was also told that he could be charged under a state statute with a misdemeanor resulting in up to one year in jail and a fine of up to $5,000 for writing about or discussing the investigation, according to court documents.
Arnold is filing a complaint in response to what he loosely refers to as the gag order, claiming that the West Virginia law “restricts constitutionally protected speech, inhibits the freedom of the press, and constricts the flow of information about matters of public importance.” The complaint seeks to prohibit the secretary of state from enforcing that statute.
“The gag can be used as a political weapon to stop people from investigating stories around election issues,” Harding said.
The complaint also includes a general challenge of the state’s law banning reporters from the inside of polling stations, Arnold said.