Mimesis Law
23 October 2019

Freedom Of The Press Does Apply In North Dakota, Mr. Erickson

October 18, 2016 (Fault Lines) – Ladd Erickson is the McLean County, North Dakota State’s Attorney. It’s a small office, consisting of Erickson, a legal secretary, and a legal assistant, and he’s responsible for prosecuting crimes that occur within McLean County. Erickson has apparently done a good job, he was first elected in 2002 and has been re‑elected three times since then.

Erickson has charged Amy Goodman, an award‑winning journalist with DemocracyNow!, an internet based news show,[1] with committing a criminal offense while she was covering a protest just north of the Standing Rock Indian Reservation.

The protest was against the Dakota Access Pipeline, which is designed to transport crude oil from North Dakota to Illinois and then to Texas refineries. The crude oil is obtained by fracking oil shale in the Bakken region of North Dakota, and members of the Standing Rock Sioux tribe a protesting the pipeline. They claim that it will pollute the watershed that supports the tribe and that the pipeline are destroying ancient Sioux burial grounds. The tribe is asking for a full Environment Impact Statement and is protesting on the site of pipeline construction.

Amy Goodman was covering that protest. She was carrying a large microphone and was with a cameraman. She broke the story that showed that pipeline employees spraying pepper mace on the protesters and setting attack dogs loose on protesters. This was picked up by major news outlets, and was embarrassing to the pipeline company, and Erickson charged Goodman with criminal trespass, and then, when he realized that he could not prove the elements of that offense, amended the charge to rioting. Erickson told the Bismark newspaper that Goodman wasn’t really a journalist, but a protestor. He stated:

She’s a protester, basically. Everything she reported on was from the position of justifying the protest actions…

You know, the last time I checked, the government did not get to decide who were and who were not journalists. The government doesn’t get to decide if the reporter is biased or balanced. Rolling StonesMatt Taibbi, who apparently is one of Erickson’s favorite reporters, wrote:

I don’t normally like to disagree with anyone possessing the excellent judgment to be a regular reader of mine, but Erickson is dead wrong here. Amy Goodman was clearly acting as a reporter at the protest. Moreover, she’s as close to the ideal of what it means to be a journalist as one can get in this business.

Taibbi is correct that Goodman is a reporter and was acting as a reporter, and Erickson’s attempt to paint her as a non-journalist protester is just wrong and misguided. Legally, the protection that the First Amendment gives to reporters also belong to citizen journalists, mere people who want to distribute news to their fellow citizens. Being sympathetic to people who are being attacked doesn’t negate the fact that this was journalism in action.

Erickson doesn’t like her brand of journalism? Too bad. He doesn’t get to use the power of the government to silence those whom he doesn’t like. Look, like many cases in Indian Country, Erickson choose to side with the corporate story rather than what was being reported by independent journalists.[2]

This isn’t an isolated incident, either. Deia Schlosberg, an Emmy Award-winning documentary filmmaker was arrested for “conspiracy” to commit theft, to commit theft of services, and to tamper with a public service. She was filming a protest group shutting down a pipeline in Pembina County, North Dakota. I’ll note that conspiracy is the favored charge of prosecutors who cannot find real evidence that the defendant actually committed a crime. Schlosberg faces up to 45 years in prison for doing journalism in Pembina County.

Ryan Bialas, the Pembina County State’s Attorney, said that:

People are free to come and protest as much as they want in my county, I just ask they don’t damage any property in doing so.

What this actually means is that if you film or report on the protest, we’ll charge you with conspiracy. It’s not that journalists can’t commit crimes, but the crime can’t be committing journalism.

Shailene Woodley, the actress from the Divergent movie series, was arrested at the Dakota Access Pipeline site. She said that police told her she was singled out because she had 40,000 followers watching her live on Facebook.

Today, as I wrote this column, I learned that the judge in Goodman’s case ruled that there was insufficient evidence to show probable cause for the riot charges, and those charges were dismissed. A call left at Erickson’s office seeking comment was not returned.

It’s not appropriate for a prosecutor to leverage his office to try and punish those with whom he disagrees. It’s not appropriate for the prosecutor to try and determine who is, and who is not, a journalist. You know, that’s been tried before, where the press was controlled by the government. The latest iteration of government controlled press was called “Pravda.”

Pravda means “truth.”

Truth is not what you get when government controls the media.

[1] It broadcasts simultaneously on television, radio, satellite, and the internet.

[2] For some reason, major media was not covering the protests until a photo of an attack dog, with blood on its teeth, mouth, and tongue appeared, courtesy of Ms. Goodman. Indeed, the initial reports from the company stated that the protesters attacked the company workers, which was belied by the videotape.

5 Comments on this post.

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  • CLS
    18 October 2016 at 11:28 am - Reply

    Greg:

    I’ll ask you the same question I asked Caleb, because I’m interested to see if you both concur or have different views.

    With the charges dropped, Radley Balko now thinks Ladd Erickson should lose his job. Do you concur?

    • Greg Prickett
      18 October 2016 at 6:28 pm - Reply

      I don’t think he’ll be fired or recalled, nor do I think a Bar grievance would work.

      He’s implementing the Indian version of Jim Crow, and a majority of the population in North Dakota will support him.

  • Jim Tyre
    18 October 2016 at 12:44 pm - Reply

    Today, as I wrote this column, I learned that the judge in Goodman’s case ruled that there was insufficient evidence to show probable cause for the riot charges, and those charges were dismissed.

    In the words of Yogi Berra, it ain’t over ’til it’s over.

    She and her lawyers declared victory on Monday, but Ladd Erickson, a state prosecutor who is assisting the Morton County state’s attorney’s office in the case, said other charges were possible.

    “I believe they want to keep the investigation open and see if there is any evidence in the unedited and unpublished videos that we could better detail in an affidavit for the judge,” he said via email. “The Democracy Now video that many people have seen doesn’t have much evidence value in it.”

    http://www.nytimes.com/2016/10/18/us/judge-rejects-riot-charge-against-amy-goodman-of-democracy-now-over-pipeline-protest.html

  • jdgalt
    18 October 2016 at 11:34 pm - Reply

    Are you seriously asserting that there is, and/or ought to be, a “reporter’s exception” to the law of trespass? I beg to differ.

    • Greg Prickett
      18 October 2016 at 11:42 pm - Reply

      North Dakota requires notice for criminal trespass charges to stick, and the notice has to be by “actual communication to the actor by the individual in charge of the premises or other authorized individual or by posting in a manner reasonably likely to come to the attention of intruders.” If by sign (and there were no signs), it has to have the name of the person who posted the notice on the sign.

      There is not a reporter’s exception to the law.

      But by the same token, a prosecutor doesn’t get to decide who is, and who is not a reporter. I’ll also note that there have been no charges filed against the handlers who set their dogs loose on non-violent protesters. Why is that? It’s clearly assaultive conduct by the handlers.