Court ruling clarifies limits of NC’s First Amendment protection

Anyone who communicates ideas about controversial topics in the United States ought to take a deep interest in protecting the First Amendment right to free speech.

Yet the right has limits. A recent North Carolina court ruling could help clarify the First Amendment’s role when a journalist is charged with trespassing.

A unanimous three-judge state Court of Appeals panel issued a June 4 decision against Matilda Bliss and Melissa Coit.

Reporters for the Asheville Blade newspaper, Bliss and Coit faced criminal charges connected to their coverage of a 2021 protest. They presented a First Amendment defense while seeking to have charges dismissed.

A trial judge rejected their arguments. Now North Carolina’s second-highest court has followed suit.

“On appeal, Defendants argue the trial court erred by denying their motion to dismiss based on their as-applied First Amendment challenge and instructing the jury in response to the jury’s questions regarding the applicability of the First Amendment and Defendants’ press status. After careful review, we discern no error,” wrote Appeals Court Judge Jeff Carpenter.

The Blade was “known for criticizing the Asheville Police Department’s methods of clearing homeless encampments and corresponding protests,” Carpenter explained.

Critics gathered at Asheville’s public Aston Park on Dec. 19, 2021. They began a multiday protest against city homeless policies. “The purpose of the protest was to demand that the city allow ‘sanctuary camping’ in the Park for the local homeless population,” Carpenter wrote.

Asheville sets a 10 p.m. curfew for its parks. Police warned protesters on the first day that they could be arrested if they remained in the park after that time. Bliss and Coit both contributed to the Blade’s protest coverage.

Events took a turn on Christmas Day. “Shortly after 10:00 p.m., officers began dismantling protesters’ tents and artwork,” Carpenter wrote. “Officers also instructed everyone in the Park, including Defendants, to vacate the Park.”

Court records suggest police never attempted to block Bliss and Coit from newsgathering.

“Officers told Defendants they could continue reporting from outside the Park,” Carpenter wrote. “Defendants, however, did not leave the Park and around 10:30 p.m., following additional requests by officers to vacate the Park, officers arrested Defendants for second-degree trespass.”

Bliss and Coit challenged the park curfew as unconstitutional. A judge denied their motions to dismiss criminal charges. Then a jury found both journalists guilty of second-degree trespass in June 2023. The judge sentenced them to a $100 fine plus court costs.

“Defendants argue their speech — specifically, newsgathering — was protected by the First Amendment,” Carpenter wrote. “The State, on the other hand, argues the First Amendment was not implicated because the Park Curfew regulates conduct, not speech.”

To resolve the dispute, Carpenter explained, judges must decide first “whether Defendants’ newsgathering was protected speech under the First Amendment.” If not, “we need go no further.”

Asheville closed all public parks between 10 p.m. and 6 a.m. “[B]y its plain language, the Park Curfew regulates pure conduct, does not aim to restrict free expression, and does not place an incidental burden on free speech,” Carpenter explained. “[T]he Park Curfew does not ‘speak to the nature or content of a visitor’s speech.’”

“Because the Park Curfew strictly regulates conduct, not speech, Defendants’ First Amendment rights were not implicated in this case,” he added.

The Appeals Court’s decision could have ended there. Yet Carpenter also noted that the curfew was “sufficiently justified” and a “reasonable time, place, manner restriction.”

Bliss and Coit also had raised concerns about the trial judge’s instructions to jurors.

“Defendants argue the trial court’s instruction prejudiced the verdict because it caused the jury to incorrectly believe that the First Amendment and Defendants’ status as members of the press could not be considered during deliberations,” Carpenter wrote.

Appellate judges disagreed. “The trial court’s instructions, however, were nearly identical to the instructional language the trial court proposed when the parties conferred,” Carpenter explained. “Thus, the trial court’s instructions were not a substantial deviation from what was previously agreed upon and Defendants were not denied the opportunity to object with specificity.”

With no objection raised during the trial, appellate judges could not address the jury instruction complaint. It “is not preserved for our review,” Carpenter wrote.

The Appeals Court issued an unpublished opinion in Bliss and Coit’s case. That means the ruling has limited value as a precedent.

But the decision signals judges’ skepticism when defendants cite the First Amendment to challenge government rules targeting conduct. It’s a warning journalists and others should keep in mind as they exercise free-speech rights in North Carolina moving forward.

Mitch Kokai is senior political analyst for the John Locke Foundation.