First Amendment lawyers say conviction of citizen journalist could lead to more media arrests
By R. Robin McDonald
December 6, 2017
An Atlanta attorney who practices First Amendment law says he fears the conviction of a citizen journalist and videographer last week on a misdemeanor obstruction charge—even though the jury cleared her of felony obstruction and criminal trespass—will lead to more prosecutions of journalists in pursuit of stories.
His concerns were echoed this week by other First Amendment lawyers who, while acknowledging that members of the media have no more rights than ordinary citizens and are obligated to obey the law, say they worry that journalists increasingly are being targeted simply for doing their jobs.
“We are definitely seeing more aggressive action and hostility by police,” said Gregg Leslie, legal defense director of the Washington-based Reporters Committee for Freedom of the Press. “It’s troubling. Reporters shouldn’t be interfered with for doing their jobs. There is no reason for arrest when other members of the public and political candidates are there.”
Derek Bauer, a partner at Atlanta’s Baker Hostetler, said that while there is likely “some sense of relief in local newsrooms” that a Dawson County jury acquitted citizen journalist and videographer Nydia Tisdale of felony obstruction of a law enforcement officer and criminal trespass, there remains “a great deal of concern” over the decision by Northeastern Circuit District Attorney Lee Darragh to prosecute her and the jury’s willingness to convict her for misdemeanor obstruction of a law enforcement officer.
“I think the jury verdict will empower authorities, particularly in smaller communities, to be more aggressive with confronting journalists in covering events,” said Bauer, whose clients include NBC Atlanta affiliate WXIA-TV. “If the authorities feel the juries will not defend the press, a few prosecutions will have a significant chilling effect.”
“I know my clients will be watching the sentencing phase carefully,” he said.
After a six-day trial, the jury convicted Tisdale of the single misdemeanor while acquitting her of felony obstruction and the underlying crime of criminal trespass. This alleged offense prompted Dawson County Deputy Tony Wooten to frog-march Tisdale from the 2104 political rally as Republican officials and candidates—including Gov. Nathan Deal, then U.S. Senate candidate David Perdue, and state Insurance Commissioner Ralph Hudgens—stood by. Only then-Attorney General Sam Olens, who in 2012 fined the city of Cumming after police forcibly removed Tisdale from a city council meeting she was recording, told the crowd that removing Tisdale from the rally was “not a good move.”
“What,” he asked, “are we afraid of with the lady having a camera filming us?”
Tisdale is scheduled to be sentenced Dec. 18. Tuesday night, Tisdale’s lawyer, Atlanta defense attorney Bruce Harvey, said that although his client is still considering her options, “I suspect that we will likely be engaged in an appeal.”
“We are disappointed they didn’t acquit her of all charges,” Harvey said. Prosecutors, he said, had offered to drop the charges if Tisdale would plead “no contest” to misdemeanor criminal trespass. Tisdale, who also testified on her own behalf, made the decision to go to trial, Harvey said. “She had the courage of her convictions, and I commend her for that.”
A federal suit Tisdale filed last year against Wooten and two other deputies who arrested her has been stayed, pending the outcome of the criminal case.
Tisdale films public meetings, political speeches and rallies then makes them available on her website, on YouTube and on social media. Harvey described her as “really committed to being nonpartisan,” noting that she does what most media outlets do not: posting everything she records in its entirety.
The case, he said, was billed as “a clash between private property and public access to politicians’ openly invited speeches.” Burt’s Pumpkin Farm, where the rally was held, is a private business that advertises as a regional autumn tourist attraction.
Harvey described the balance between private property rights and the First Amendment as “pretty delicate.” But, he explained, while private property rights deserve respect, “It still has to be done the right way.” And that, he added, Wooten failed to do.
At Tisdale’s trial, public officials including Georgia Insurance Commissioner Ralph Hudgens, Labor Commissioner Mark Butler, and former attorney general and current Kennesaw State University president Sam Olens took the stand. Only Olens knew Tisdale prior to the 2014 rally.
Hudgens, Butler and Olens all testified that they were not bothered by Tisdale’s video camera.
“In politics, you pretty much assume someone is recording you all the time,” Butler said. The labor commissioner testified that while he was seated during the rally awaiting his turn to speak, someone behind him told him Tisdale was being removed for videotaping speeches. Butler testified that as he spoke to the crowd, he saw Tisdale being removed. He later found Tisdale and spoke with her briefly.
Olens said those in public office are “foolish” not to assume they are being recorded. Olens testified he watched as Tisdale was held down to be handcuffed and heard her cry out.
“That was a shriek that came from a lot of pain,” Olens said.
Harvey said that in acquitting Tisdale of felony obstruction, the jury rejected Wooten’s testimony that Tisdale had elbowed him and kicked him in the shins as he muscled her out of the rally and into a nearby barn where he forcibly restrained her until other deputies arrived. In acquitting Tisdale of criminal trespass, the jury rejected Wooten’s assertions that he had identified himself as a law enforcement officer or informed her he was acting at the behest of owner Johnny Burt and revoking permission for her to remain on the property.
Harvey acknowledged the jury’s inconsistency in convicting Tisdale for resisting arrest after clearing her of the underlying offense.
“If they didn’t believe he [Wooten] gave notice and didn’t believe she committed criminal trespass and didn’t believe him when he said she elbowed him in the face … I don’t know why they should believe he had probable cause to tell her to leave to start with,” Harvey said.
Atlanta attorney Ryan Locke, a former Fulton County public defender, said Georgia’s courts permit inconsistent verdicts. The Tisdale verdict, he said, may seem confounding because, “How can you be guilty of misdemeanor obstruction if you weren’t guilty of anything else? Seemingly, you were right to resist.”
In Georgia, he said, if a law enforcement officer does not have probable cause to make an arrest, “That is not a lawful use of force, and you can resist.” But, he added, “You resist at your own peril. What I say to my clients is that the proper time to deal with this is in the courtroom in front of a judge, not on the street.”
Locke said that inconsistent verdicts “most often occur when there is a compromise.”
“My best guess is that they reached an intractable point, and they decided to compromise rather than continue to deliberate or tell the judge they just couldn’t agree.”
Media lawyer Derek Bauer said the verdict “seems to be confirmation that the public’s trust in and support for journalists as impartial and independent observers continues to erode in the current political climate. As a result, he said he now counsels media clients “to be sensitive about their news gathering activities on private property—even if an event is open to the public and the press is initially welcomed—because permission can be revoked instantly and what follows is unpredictable.”
“Regardless of how any appeal may come out, the Tisdale verdict is undoubtedly a prominent cautionary tale for newsrooms throughout Georgia and will likely embolden law enforcement to be more forceful in future encounters with the press,” he said.
Augusta attorney David Hudson, longtime counsel for the Georgia Press Association, and First Amendment lawyer Cynthia Counts, a Duane Morris partner, said they have cautioned their media clients that journalists have no more rights than the public at large and are obligated to obey the law. Businesses or other private venues may be open to the public, Hudson said. But if a store owner asks a journalist to leave, “Just as any other citizen would have to leave under those circumstances, so would a journalist. You don’t have a right to stay on private property once you are excluded by the owner. I never advise a journalist to resist an order from law enforcement, whether that order is correct or on its face invalid,” he added. Resisting the order is not the proper way to challenge it.”
Counts applauded the jury decision to acquit Tisdale of criminal trespass. “The jurors certainly understood that, when you have a public political rally, that is not a private event but a public forum,” she said.
DAILY REPORT: First Amendment lawyers say conviction of citizen journalist could lead to more media arrests 12/06/17
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