The FACE Act was written with a very specific purpose: to protect those seeking abortions without restricting First Amendment-protected speech. Passed in 1994 under President Bill Clinton, the Freedom of Access to Clinic Entrances Act arose after a horrific string of attacks on reproductive care facilities and providers across the United States.
Two decades later, the Trump administration is twisting this law to chill dissent by prosecuting journalists for the crime of reporting.
Two journalists, former CNN host Don Lemon and independent journalist Georgia Fort, were arrested Friday after covering a recent protest at a Minneapolis church. According to the Department of Justice, Lemon’s crime was a start-to-finish livestream reporting on the protest, beginning with an organizing meeting and concluding with the protest itself at the at the Cities Church in St. Paul, Minnesota. As for Fort, the only allegation proffered by federal prosecutors is that she and Lemon approached the pastor – who has a day job running the local Immigration and Customs Authority field office — in “close proximity” and tried to oppress and intimidate him by “peppering him with questions.”
Covering a protest – even one inside a church – isn’t a crime.
Such actions, prosecutors allege, are violations of the FACE Act, which includes a provision focused on houses of worship.
U.S. Attorney General Pam Bondi brought these charges despite the fact that the FACE Act protects “expressive conduct (including peaceful picketing or other peaceful demonstration) from the jeopardy of prosecution.” That language clearly did not confuse a federal magistrate and an appellate court when they refused to issue a warrant. So the Justice Department convinced a grand jury to indict them.
Courts have found the right to report and record events of public concern almost universally to be “expressive conduct.”
The FACE Act itself provides specific instructions on the kind of behavior that constitutes a violation. It notes that one cannot interfere, intimidate, or obstruct ingress or egress to a reproductive health services clinic or to or from a place of worship, “rendering passage to or from such a place of worship unreasonably difficult or hazardous.”
It’s this language about a place of worship that the Trump administration is leaning on. But it’s clear that this language ensures that the law applies only to actions involving restriction on physical freedom of movement, interference in access to property, or actions causing a person to experience reasonable fear of harm.
In this case, the term “interfere with” means to restrict a person’s freedom of movement. “Intimidate” means to place a person in reasonable apprehension of bodily harm to themselves or to others. And “physical obstruction” means making it unreasonably difficult or dangerous to enter or leave a facility that provides reproductive health services or a place of worship.
Looking at video of the protest, it’s clear that these journalists weren’t interfering, obstructing, or intimidating in ways that would violate the FACE Act. Covering a protest — even one inside a church — isn’t a crime. And asking questions — including difficult ones — isn’t a violation of religious freedom.
These are things all journalists do, which is precisely what makes this prosecution so chilling.
Courts have warned about the danger of the FACE Act being abused by overzealous prosecutors for years.
In the case New York v. Operation Rescue, the Second Circuit Court of Appeals noted in 2001 that courts must prevent abuse of the FACE Act because an erroneous application “threatens to impinge legitimate First Amendment activity.” The courts have made a distinction between actions that make going to a place of worship “unpleasant or even emotionally difficult, including yelling,” and conduct that is prohibited by the FACE Act. Since the Act does not criminalize protesting or even unpleasant yelling, it certainly does not criminalize two reporters doing their job by covering a community crisis – even if that community crisis is at a house of worship.
This, of course, isn’t the first attempt by the Trump administration to stifle the press. Just this month, for instance, federal agents raided the home of a Washington Post reporter and seized her devices in a leak investigation.
As the Trump administration’s attacks on press freedom continue to mount, it’s critical that journalists who find themselves under fire find support. As the director of the Press Freedom Defense Fund, I’m working to make sure that Fort has the resources she’ll need to mount a strong defense.
Weaponizing the FACE Act against journalists is a dangerous escalation from the White House. What’s critical is that the media cover this attack, look at the administration’s motivations, and pay attention to who is being prosecuted — whether it’s a Washington Post reporter with a deep rolodex of government sources or two Black journalists covering anti-ICE activism in Minnesota.
The news industry must also continue to chronicle the litany of abuses carried out by the Trump administration’s immigration enforcement apparatus on the streets of Minneapolis and other cities across the U.S. This is not simply a shambolic legal gambit, but also an obvious attempt to divert attention away from the horrifying assault that has resulted in true violations of First Amendment rights of protestors and journalists, and the brutal killings of Nicole Good and Alex Pretti.
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