Nydia Tisdale (Photo: John Disney/ALM)

An attorney for an online journalist arrested while filming a 2014 Republican political rally at a pumpkin farm asked the Georgia Court of Appeals Tuesday to reverse her misdemeanor conviction for obstructing a law enforcement officer.

Atlanta attorney Andrew Fleischman contended that videographer Nydia Tisdale's 2017 misdemeanor conviction also should be remanded with instructions to the trial court to enter a judgment of acquittal. Fleischman argued that Tisdale's conviction for obstructing an off-duty deputy who stopped her from filming and frog-marched her from the rally should not stand once the jury decided to acquit her of criminal trespassing—the basis for her forcible detention and later arrest.

"The only thing she was convicted of here is not complying with a request to leave," Fleischman argued Tuesday. "That's it."

"They are saying the officer had authority to ask her to leave under the trespass statute and she didn't comply. … All we are talking about is whether the officer was acting lawfully."

Fleischman and partner Noah Pines are representing Tisdale in the appeal.

Tisdale, who hosts the AboutForsyth.com website, has for years filmed public meetings, political speeches and other public events and then posted the unedited videos, which she calls "Nydeos," without commentary on the website.

Her misdemeanor conviction stems from her 2014 arrest after she refused to stop recording state officials' political speeches at Burt's Pumpkin Farm in Dawsonville. In an episode that became known as "Pumpkingate," an off-duty sheriff's deputy hired to provide security at the rally grabbed Tisdale and took her to a nearby barn after Georgia's then-Insurance Commissioner Ralph Hudgens questioned why she was recording him after he made an off-color remark about a Democratic candidate for the U.S. Senate.

More than a year after her arrest, Tisdale was indicted on felony obstruction of a police officer, misdemeanor criminal trespass, and the misdemeanor obstruction charge. After a six-day trial, a jury acquitted Tisdale of the felony obstruction and trespass charges  but convicted her of  misdemeanor obstruction.

On Tuesday, Dawson County Assistant District Attorney Conley Greer argued that Tisdale's permission to record political speeches at Burt's Pumpkin Farm, despite advertisements in social and local print media inviting the public to the rally, was revoked by a Republican Party official on behalf of the owners who hosted the rally before the deputy removed her. That party official, Clint Bearden, is now a superior court judge in Dawson County.

In asking the appeals court to affirm Tisdale's misdemeanor conviction, Greer resurrected arguments associated with the criminal trespass claim—suggesting that Tisdale may have misrepresented herself in gaining access to the publicly advertised rally and was asked to leave before the deputy forcibly removed her.

Greer argued that other people who came to the rally hoping to record it were turned down, although at least one local reporter did record the event, including Tisdale's removal.

Because Tisdale refused to leave when asked, Greer argued that the deputy "was acting lawfully" and as "a representative of the property owner" and that there was sufficient evidence to convict her of misdemeanor obstruction, which rested on Tisdale's refusal to stop recording and leave.

Fleischman said that evidence was "quite strong" that Tisdale believed she had permission to attend and record the rally and was even personally greeted by Georgia's then-Attorney General Sam Olens, who previously defended Tisdale's right to record public meetings. As attorney general, Olens fined the city of Cumming after Tisdale was barred from recording a city council meeting.

Fleischman also warned the appellate panel—Presiding Judge Yvette Miller and Judges Clyde Reese and Brian Rickman—that affirming Tisdale's conviction could have a negative impact on other journalists by giving law enforcement officers, even off-duty ones, virtually unilateral authority to order them to leave a jurisdiction or face a potential obstruction charge simply for failing to comply with their orders.

"Think about the effect this would have as a policy matter on journalists," Fleischman argued. While acknowledging that Tisdale's case for overturning her conviction would have been stronger if the rally had been held on public rather than private property, the lawyer argued that she still had "a reasonable belief" that she had permission to be there.

"The state had to prove that she knew he [the off-duty deputy] was acting lawfully," Fleishman said. But, he added, "The jury was instructed that reasonable belief was irrelevant."