Concerns Over Misinterpretation of Constitutional Principles

The concept of false constitutionalism is increasingly troubling in the U.S. There’s a notable trend among public officials, commentators, and media members to introduce misleading principles or twist genuine constitutional ideas. This often seems aimed at deflecting blame onto political adversaries or justifying the questionable actions of allies.

Such deception undermines the integrity of constitutional governance by fostering misunderstandings about what the Constitution actually says.

The First Amendment does indeed safeguard a reporter’s right to access information, yet it does not shield illegal activities aimed at obtaining that information.

Sadly, the First Amendment has become a hotspot for pseudo-constitutional arguments. Many Americans, including those who study the Constitution, often make exaggerated claims about the protections it provides, far beyond what the Founding Fathers intended when they crafted this vital section of the Constitution.

A recent illustration of this is the backlash surrounding the purported First Amendment violations related to Don Lemon’s arrest.

Lemon, a former CNN journalist, was arrested on January 30 for disturbing a church service at Cities Church in St. Paul, Minnesota. He was with protesters who disrupted the service to voice their grievances against Immigration and Customs Enforcement in Minneapolis. Reportedly, the church’s leaders are affiliated with ICE. The Justice Department charged several participants, including Lemon, with violating the FACE Act and conspiring to infringe on the civil rights of others—in this case, the right to assemble and worship peacefully.

In a public statement, Lemon’s attorney, Abby Rowell, characterized the arrest and the federal charges as an “unprecedented attack on the First Amendment.”

“Don has been in journalism for three decades,” she claimed, asserting that his constitutionally protected activities in Minneapolis were akin to his previous work. Others have echoed this sentiment, expressing outrage that any journalist could face consequences for their actions.

However, the First Amendment does not provide blanket protection for journalism or journalists as a group. It strictly protects specific activities—speaking and publishing. This emphasis is evident in the amendment’s wording: “Congress shall pass no law abridging the freedoms of speech or the press.”

Related: Unsealed indictment against Don Lemon cites his own comments on livestream of ‘takeover’ at church

Debates around the First Amendment’s scope stretch back, notably to the Sedation Act of 1798. Figures like Thomas Jefferson and James Madison condemned it, while others like Alexander Hamilton defended the government’s ability to penalize certain publications. But, at no point was there any suggestion that the First Amendment allowed illegal actions in pursuit of broadcasting information.

The original interpretation of the First Amendment was fairly narrow, a perspective echoed in the writings of early commentators like Justice Joseph Story, who remarked:

It is clear that the language of… [the First Amendment] indicates that everyone has the right to express opinions without prior restraint, as long as it doesn’t disturb public peace.

In Story’s view, even the rights to speak and publish come with necessary boundaries that uphold public order. Importantly, he argued that the First Amendment protects these rights for everyone, not just journalists.

Accepting the more lenient interpretation of the First Amendment might lead to unreasonable consequences, implying that journalists could break laws in the pursuit of their stories.

In reality, this isn’t a commonly accepted viewpoint. For example, if a reporter was speeding down a road to cover a breaking story, they’d still face legal repercussions for reckless driving. Even if that reporter caused an accident, the circumstances surrounding their reporting wouldn’t provide a legal defense.

While the First Amendment does guarantee a reporter’s right to information, illegal actions taken to acquire such information aren’t covered. They might even conflict with privacy and ownership rights established in law.

Lemon and the protesting individuals engaged in the same unlawful behavior, rendering the First Amendment irrelevant to either party.

It certainly attracts attention when potential political candidates meet advisors at their homes to consider a campaign. However, such situations don’t justify actions that involve trespassing into a residence against the homeowner’s wishes. Lemon, along with the others, could face charges for such behavior.

This scenario underscores the inconsistency of those who condemned the church disruption while suggesting Lemon should not be prosecuted. It seems they believe that while the other protesters broke the law, Lemon’s presence was merely journalistic.

In fact, his actions were indistinguishable from those of the others. They all entered a religious setting uninvited, disrupting worshippers as they attempted to practice their constitutional rights. This tension rendered the congregants unable to pursue their activities.

To place greater blame on the other protesters would be to treat Lemon as if he belonged to a privileged class that could disregard laws.

This contradiction would pose a significant challenge to our constitutional framework. The protesters aimed to voice their political opinions, which the First Amendment protects, yet both Lemon and the demonstrators made missteps in their methods of expression.

Lemon and the protesters were participating in the same unlawful act, and the First Amendment doesn’t serve as a shield for either.

Imagine if the roles were reversed. Suppose a faction of the Ku Klux Klan, outraged by civil rights actions, stormed a predominantly Black church, where members included civil rights advocates. Let’s say a sympathetic journalist filmed the scene. Would anyone in good conscience deem such actions as legitimate protests protected by the First Amendment, or think that the reporter should be exempt from charges that would rightly apply to others involved?

Undoubtedly not.

Related: When worship is interrupted, neutrality is no longer an option

It’s crucial to remember Justice Story’s assertion that speech and press protections extend to “everyone.” This principle is reinforced by contemporary Supreme Courts. Figures such as Justice William Brennan have insisted that the First Amendment safeguards all citizens, not just professional journalists. Bloggers and citizens distributing newsletters possess the same rights as those employed by major media outlets.

This understanding clarifies the troubling ramifications if Lemon’s actions during the Minnesota church incident were defended as protected by the First Amendment.

If the amendment covers all citizens, then anyone could exploit this to justify illegal behavior under the guise of “reporting.” Those with recording devices could invade private settings like neighbors’ homes, local churches, or even the offices of major networks, claiming First Amendment immunity for disrupting others’ lives.

Such a standard is not reasonable, nor is it actually supported by the First Amendment.

As Justice Story noted, “The exercise of a right and the abuse of a right are fundamentally different; one cannot legitimately be inferred from the other.”

He further argued that common sense demands a general principle of exercising one’s freedom while respecting the rights of others and public order. This accurately reflects the Founding Fathers’ perspective on constitutional rights, and aligns with a public policy framework that secures everyone’s rights.