Judge says journalists can't trespass to cover protests

Two journalists covering protests of mountaintop removal mining in rural West Virginia did not have a privilege to be on the mining company’s property without permission, a county judge ruled this week.

Raleigh County Circuit Judge Robert Burnside listened to arguments that the photojournalists should be excluded from a preliminary injunction obtained by mining concern Massey Energy Co. against the protesters and the journalists during a two-day hearing this week. Burnside rejected the journalists’ First Amendment claims to a newsgathering privilege, The Charleston Gazette reports. Burnside did allow one of the journalists to withhold the identity of his sources using the state’s shield law.

The journalists, Chad Stevens and Antrim Caskey, have both been covering mountaintop removal in West Virginia for several years and were both given trespass citations after an early February protest. The mining company later sought restraining orders against the journalists and the protesters.

Caskey is a photojournalist who has been covering the work of Climate Ground Zero, a group that is fighting the practice of mountaintop removal since 2008. She considers herself "embedded" in the group. Some of her photographs are published on the group’s Web site. Her work has also been published in The New York Times Magazine and Columbia Journalism Review.

Stevens covered a Feb. 3 protest on Massey Energy property as part of a documentary he has been working on since 2006 about wind turbines as an alternative to surface coal mining in Appalachia. That protest focused on the wind turbines, Stevens said. After state police allowed him to shoot the entire protest — from the demonstrators’ arrival to their arrest and removal from the property — Stevens was given a trespass citation.

Caskey has been cited three times for trespassing at Massey Energy sites when she accompanied members of Climate Ground Zero to record their protests. On April 16, after the restraining order had been issued, Caskey again accompanied members of Climate Ground Zero to a protest on Massey Energy Co. property. They were arrested and charged with violating the temporary restraining order. 

"I was not causing any harm," Caskey told the Reporters Committee. "I was not stopping any traffic. I was not protesting. I was shooting an event."

On May 1, Burnside found Caskey and four protesters guilty of violating the restraining order, according to The Register-Herald of Beckley, W.Va. Burnside stayed $500 fines against each until this week’s hearing. Burnside decided not to drop the contempt charges and the fines are reinstated, The Charleston Gazette’s Ken Ward Jr. reported on the paper’s "Coal Tattoo" blog.

At the May 1 hearing, Roger Forman, the attorney for Caskey and several protesters, argued that she should not be held in contempt and that as a journalist she had a privilege to document Climate Ground Zero’s work, according to The Register-Herald. Burnside said there was no such privilege.  

On Monday, Burnside began a  two-day hearing on whether to grant a preliminary injunction — essentially extending the restraining orders — that would keep Caskey, Stevens and the protesters from Massey Energy property, The Charleston Gazette reported. Burnside again rejected Caskey’s claim, and for the first time Stevens’s, that the court orders would infringe on their First Amendment rights to gather news, according to the paper.

Stevens said he took the stand during the two-day hearing in an effort to establish his credentials as a journalist for the court. Stevens, a one-time college photographer of the year, is a former member of the faculty in Western Kentucky University’s photojournalism program and has worked as a photographer and producer for a number of news outlets, including the Los Angeles Times. Stevens is being represented pro bono by Robert Bastress, a constitutional law professor at West Virginia University, and Jody Wooton, a Beckley attorney.

During the hearing, Stevens said the mining company’s attorneys tried to get him to reveal the sources he’s used to cover the mining protest. "If I were to reveal the sources in this situation, it would be harmful in two ways," Stevens told the Reporters Committee.  "First, it would put some of them in harm’s way. Mountaintop removal is a controversial issue; the community is divided. I would also be completely shut out from being able to cover the story."

Stevens said he wasn’t forced to reveal his sources, but Burnside did grant a preliminary injunction to keep the journalists and protesters off its property.  Both Caskey and Stevens said they would appeal Burnside’s opinion.