A Vermont judge declined to dismiss charges against a newspaper publisher who was charged with criminal trespassing while covering an anti-wind energy protest on Lowell Mountain.
Chris Braithwaite, owner and publisher of The Chronicle, a weekly newspaper in Barton, was arrested in December along with six protesters for trespassing on private land where Green Mountain Power is constructing a green-energy wind farm. Braithwaite covered the development of the project for years — from the initial proposal to protests after construction — but a judge in Orleans County found that even though he was a member of the press, he "enjoyed no privilege to trespass on private property."
The land is privately owned, but at times is open to the public for recreational use, Braithwaite said.
"We are not talking about the press’ ability to go into people’s homes or places of substantial privacy. We are not talking about them breaking and entering into buildings, but in an open field owned by a quasi-public utility, highly regulated, and under Vermont law citizens would normally have the constitutional right to travel on, unless the owner expressly closed it down," said Braithwaite’s attorney Philip White.
But the Vermont Constitution does not provide the press any higher privilege to enter private property — even when reporting on government affairs — according to court documents filed by Orleans County Deputy State's Attorney Sarah Baker.
"Property owners still have the right of privacy even though the public may have an interest in the government's response," Baker wrote.
The scope of protection for newsgathering is not clearly defined. In Branzburg v. Hayes, a landmark case about a reporter’s right to keep sources confidential, the U.S. Supreme Court noted: “We do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not quality for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.” The Court introduced this defense of a free press simply to state that forcing reporters to testify about sources is not covered by this constitutional protection. And in the years since the Branzburg decision, the high court has never spelled out that protection.
In August, Green Mountain broke ground on a controversial $163 million wind farm with plans to erect 21 wind turbines along a three-mile portion of the mountain range. For years, Braithwaite covered the wind farm, but on Dec. 5, after his eighth hike up the mountain — to cover demonstrations by protesters camped near the construction site — he was arrested. He was the only reporter there.
Protesters lined the road and blocked the entrance for construction vehicles for three hours before police arrived. Braithwaite declined a police officer's request to leave and said he wanted to stay and witness the arrests of protesters. The three-hour blockade ended with the arrests of Braithwaite and six demonstrators.
“Nowhere is the freedom of the press more important than when it is covering the transactions of government or the actions of a government officer. It is in this realm that the press is viewed as … absolutely essential to the functioning of a meaningful democracy – as critically important as the ballot box itself,” White wrote in court documents.
No trial date is set, but the case is expected to take place within the next three to six months. White said they plan to challenge the case in the Vermont Supreme Court if Braithwaite is convicted.
Related Reporters Committee resources: