By Baynard Woods
The judge in the trial of six of the 193 people to face decades in prison under the federal Riot Act for protesting on Inauguration Day, dismissed one of the most serious charges Wednesday. Judge Lynn Leibovitz noted that “personal enthusiasm” for destruction is different than incitement. She refused to throw out the remaining charges, however, leaving the jury to decide whether those who were present at a protest should be held responsible for any destruction of property that happens there.
Alexei Wood, a journalist, is among the six people whose fate will not be determined by a jury. The government has been using a livestream video taken by Wood as part of its evidence against protesters. And yet prosecutor Jennifer Kerkhoff has simultaneously maintained the argument that Wood was not really a journalist.
“Today Kerkhoff conceded that my journalistic credibility had nothing to do with her case. Which is the first time she said that,” Wood told the Real News. “She also conceded that I went there to document. That seems clear and established.”
Wood was clearly wearing a press pass and MPD detective Greggory Pemberton testified that he discovered no communications with protest organizers on Wood’s phone. He did, however, find emails with photo-editors seeking assignments.
Wood’s video does not show him breaking anything or engaging in illegal behavior. But the government argued that his verbal commentary—primarily some cheers and other non-verbal speech acts—can be taken as incitement.
Leibovitz threw out the incitement charge but also said that the livestream helped “advertise” the event and “recruit” people for the protest, meaning Wood could be held responsible for any criminal act he filmed—a clear criminalization of journalism itself.
“With respect to Mr. Wood, a reasonable juror could find that he was a principal and an aider and abettor of the riot,” Leibovitz said. “Yes, he was there filming. There is no evidence in the record that that was for a purpose inconsistent with participation in the riot.”
This is an astounding claim. Leibovitz is arguing that journalists should have to provide evidence that their journalistic work would be inconsistent with the event they are covering, rather than saying that the government has to provide evidence, beyond a reasonable doubt, that he was participating. But for Leibovitz, the very act of broadcasting was participating.
“He played a role that furthered the purposes both of the conspiracy and of the riot itself, which was to advertise it, to broadcast it, to live-stream it such that other could be recruited to join in,” she said. “For all these reasons, a reasonable juror could find Mr. Wood guilty of destruction of property.”
This is a terrifying standard. The judge is saying that Wood can be found guilty of destroying property because he filmed its destruction and conveyed information about it.
“And persons hearing his livestream could be recruited, were being kept abreast and informed of the events,” Leibovitz said, all but defining journalism.
“There was nothing directive. It was merely expressing my enthusiasm,” Wood said of his occasional shouts and hollers.
“If you mute my livestream, there’s clear journalistic value—the prosecution lives it—but if you unmute it I could be facing years in prison for my verbal actions,” Wood said during the trial’s lunch break. “I don’t know … what it means for the world of journalism.”
The Committee to Protect Journalists (CPJ) finds that 2017 has seen a record number of detainment of journalists. Aaron Cantú, a reporter with the Santa Fe Reporter, is also facing charges in this case and will be tried as part of a later group.
Wood moved from his home in San Antonio, Texas, for the case. He says he has been unable to plan for his life and career because of the charges. After being tear-gassed and arrested at the Inauguration, he didn’t cover another protest until May 1.
“I can’t see past this cse. I just can’t,” he said. “And I’m not going to get attached to anything until this is said and done.”