Imagine that I were pro-abortion (which takes a lot of imagination, because I most certainly am not!). Now imagine that I decided to hold a pro-abortion protest against Alabama’s anti-abortion law – in your living room!
“Not on my property!” is your response. “Go hold your protest somewhere else!”
That recalls the events in Minnesota on Sunday, Jan. 18, when about several dozen anti-ICE protesters stormed a worship service of Cities Church in St. Paul to protest the fact that pastor and elder David Easterwood also serves as St. Paul’s acting ICE field office director. Easterwood was absent that morning, but another pastor asked the protesters to leave because disrupting a worship service and intimidating worshipers, including women and children, was “unacceptable” and “shameful.”
At this point, Don Lemon, a reporter and former CNN host, told the pastor, “Listen … there’s a Constitution, the First Amendment to freedom of speech and freedom to assemble and protest.”
Of course, the First Amendment protects freedom of speech, assembly and protest (and free exercise of religion, but Lemon forgot to mention that). But if Lemon really believes the First Amendment gives him the right to intrude on other people’s property and disrupt their activities, he is a constitutional idiot. I’m giving him the benefit of the doubt for sincerity, but it’s unlikely even Lemon is stupid enough to believe that.
Let’s go back to Constitutional Law 101 for a quick review. When analyzing free speech rights, we use “forum analysis”: we examine where the free speech activity is taking place, then ask, “What kind of forum is this?”
Some areas are considered “traditional public forums” (ok, grammarians, technically “fora”). These are places where we expect to hear people discussing and arguing about all sorts of things, including public streets and parks. In traditional public forums, officials cannot engage in content or viewpoint discrimination. Content discrimination says, “No political discussions”; viewpoint discrimination means, “Democrats may speak, but not Republicans.”
Other areas are “designated public forums.” These are government-designated areas for speech activity, such as rooms in the courthouse or school that are commonly rented to private organizations for meetings. Once an area has been so designated, it is like a traditional public forum; no content or viewpoint discrimination is allowed.
Then there is the “limited public forum” that is set aside for speech on one subject but not on others. This is a murky area of law, but in a limited forum, content discrimination is allowed, whereas viewpoint discrimination is not. A public university is probably a traditional public forum, but its classrooms are probably limited forums – I could not enter a physics classroom and start talking about Russia’s war on Ukraine.
And finally, there are closed forums such as prisons and military reservations where speech can be more controlled. The purpose of a prison is not to facilitate discussion but to restrain criminals. The purpose of a military reservation is not to engage in cultural exchange but to fight and win wars. A good explanation of forum doctrine is found here.
Private property is a closed forum, if it is a forum at all. The property owner may restrict or limit speech in any way he chooses. If I choose to hold a pro-life meeting, speech or demonstration on my farm, I am free to do so. But no one else may hold a meeting on my farm unless I allow it.
Churches are private property. They may allow or restrict attendance by whomever they choose. If a church holds itself open to the public, then nonmembers who attend are either invitees (those with express permission to attend) or licensees (those with implied permission). But if they disrupt the purposes of the church meeting or are asked to leave, they become trespassers and may be charged with criminal trespass if they do not leave promptly. A good discussion of invitee, licensee, and trespasser status may be found here.
When Lemon and the anti-ICE protesters entered Cities Church, they may have been invitees or licensees. But when they began disrupting the service, and when the pastor asked them to leave, they clearly became trespassers. They may be charged locally with criminal trespass, but because local authorities seem unwilling to act, federal authorities may step in and charge them with violating the Freedom of Access to Clinic Entrances Act (which prohibits disrupting both abortion clinics and church services), or possibly with violating the Ku Klux Klan Act, which prohibits conspiracies to violate the civil rights of others.
I applaud Attorney General Pam Bondi for acting quickly to prosecute this breach of public order and suppression of freedom of religion. I hope this incident awakens Christians to the fact that the Minneapolis protests are not simply anti-ICE but anti-Christian as well.
Finally, having lived in Minnesota for eight years, I’d like to assure my Alabama readers that once you get outside the Twin Cities, most of Minnesota is as sane and American as anywhere else.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He and his wife live in rural Pike Road, Alabama, and he may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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