Don Lemon has no right to barge into your church

The First Amendment to the U.S. Constitution begins with what George Will once called the five most beautiful words in the English language: Congress shall make no law. (If only the founders had stopped there, libertarians joke.) The important point about the U.S. Justice Department’s arrest of self-publishing journalist Don Lemon is that Congress shall make no law—the Bill of Rights only protects us against the government. Lemon’s First Amendment rights as an “independent journalist” do not include a right to invade private property like Cities Church under the guise of reporting.

This rule is so obvious every parent and middle schooler knows it. Whenever an empowered child returns from seventh grade social studies ready to argue about the application of the Fourth Amendment to bedrooms, mom or dad reminds him or her that their constitutional right against unreasonable searches and seizures only applies to the police, not to parents.

Yet Lemon and his allies have nevertheless presented his arrest for covering the protestors at Cities Church as a grave offense against the First Amendment. This logic is ridiculous. First off, if Lemon’s freedom of the press as a journalist includes covering protestors inside the church, why would those protestors’ freedom of speech not include the right to speak inside the church?

The answer is obvious—because our constitutional rights can look different on private property. Take a mundane example outside our current political controversies: If Lemon thought that a large manufacturing company was polluting the environment, would the freedom of the press mean he could go into that company’s private offices after hours, rifle through their private files, log onto their private computer network, and then report his explosive story? Obviously not—that would be trespassing. So why is a church any different?

It's not, is the short answer. The courts answered these questions several decades ago, when there was a movement afoot to hold nuclear weapons protests inside shopping malls. Shopping malls, the protestors argued, were the modern-day town square, the gathering place where everybody passed through. If you want to spread a political message with leaflets or bullhorns, standing in a park will only reach a few dog-walkers. Malls were the place to reach the masses. But the courts correctly held that the mall cops could kick the protestors out, because the malls were private property, and if the corporations that owned and operated the malls didn’t want hippies leafleting to their shoppers, the First Amendment was no bar to kicking them out.

The U.S. Supreme Court resolved a very similar case just a few years ago—Cedar Point Nursery v. Hassid (2021). The State of California passed a rule saying that agricultural operations (here, a tree farm) had to allow unions access to their property. Union organizing is a classic First Amendment-protected activity. Yet the Supreme Court correctly held that the union’s First Amendment right to speak and associate did not include—and California could not grant—a right to enter onto a private company’s private property. That is, in essence, a taking of that private property, which violates a different constitutional prohibition.

The same applies to Don Lemon—he can stand outside on a public sidewalk and tell his viewers what he hears or believes is happening inside the church, but that does not extend to a right to invade the church to cover the protest if the church does not welcome him inside for that purpose. The prosecution will still have to prove he violated the FACE Act or another law, but the First Amendment defense should be given short shrift.

The silver lining in all this is that opinion leaders and mainstream media on the left are labeling Lemon a journalist. There is a sentiment among many that the First Amendment’s guarantee of freedom of the press is there for professional journalists and established journalism institutions, The Washington Post and ABC News. That may once have described Lemon, when he was at CNN. Today he’s just a guy with a camera and a microphone streaming online, no different than the young man who exposed the childcare fraud in Minnesota.

That looks much more like the press in the founding era, where anyone could print and distribute a handbill or newspaper. The press is not an industry or institutions, but a tool or technology (as has been argued by Professor Eugene Volokh). This more expansive definition of press is a boon to conservatives today, where independent journalists are often our only alternative to a legacy media captured by left-wing ideology.

So even if we all agree that Lemon is a journalist, being a journalist is not an open-ended get-out-of-jail-free card to invade private property or to conspire with sources to disrupt church services.