The North Carolina Court of Appeals has ruled against two Asheville journalists challenging trespass convictions related to their arrests at a 2021 protest. It’s the second time this year the state’s second-highest court has ruled against the journalists.
Appellate judges issued a February opinion dismissing an appeal from Matilda Bliss and Melissa Coit on procedural grounds. In a new unpublished opinion Wednesday, the court rejected the journalists’ substantive arguments. Unpublished opinions have limited value as court precedents.
“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 Judge Jeff Carpenter for the unanimous three-judge appellate panel.
Bliss and Coit were reporters for the Asheville Blade, a newspaper “known for criticizing the Asheville Police Department’s methods of clearing homeless encampments and corresponding protests,” Carpenter explained.
A multiday protest started Dec. 19, 2021, at Asheville’s public Aston Park. “The purpose of the protest was to demand that the city allow ‘sanctuary camping’ in the Park for the local homeless population,” Carpenter wrote.
The Asheville city code sets a 10 p.m. curfew for Aston Park, and police warned protesters on the first day of the protest that they could be subject to arrest if they remained in the park after that time.
The protest stretched into Christmas Day. “Shortly after 10:00 p.m., officers began dismantling protestors’ tents and artwork,” Carpenter wrote. “Officers also instructed everyone in the Park, including Defendants, to vacate the Park. Officers told Defendants they could continue reporting from outside the Park. 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 curfew as unconstitutional and filed motions to dismiss the charges against them. The trial judge denied the motions. 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. As a threshold matter, we consider whether Defendants’ newsgathering was protected speech under the First Amendment, because ‘if it is not, we need go no further.’”
“The Park Curfew provides that ‘[a]ll public parks … shall be closed to the general public between the hours of 10:00 p.m. and 6:00 a.m.’ Thus, by 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,” the Appeals Court opinion continued.
Even if Bliss and Coit’s speech had been protected by the First Amendment, the curfew was “sufficiently justified” and a “reasonable time, place, manner restriction,” Carpenter wrote.
Bliss and Coit also had raised concerns about the jury instructions in their case.
“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 rejected that argument. “The trial court’s instructions, however, were nearly identical to the instructional language the trial court proposed when the parties conferred,” the court opinion 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.”
Without an objection, the jury instruction issue “is not preserved for our review,” Carpenter wrote.
Judges Julee Flood and Michael Stading joined Carpenter’s opinion.
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