General Discussion

Former CNN anchor Don Lemon was arrested last week after entering a Minnesota church and covering protesters who disrupted a service there; protesters allege that the pastor is a senior ICE official. Mr. Lemon and several protesters now face federal charges under the FACE Act. My colleague Walter Olson has explained reasons why the prosecution may fail, including the initial rejection of an arrest warrant for Lemon by a federal magistrate judge and the Act’s requirement that any disruption of a religious service has to be somewhat forceful. Cato’s Tommy Berry further notes that if Mr. Lemon were charged in retaliation for protected First Amendment activity, the prosecution would be unconstitutional. Yet another reason for concern: the FACE Act itself may be unconstitutional.

FACE stands for “Freedom of Access to Clinic Entrances.” Enacted in 1994 as compromise legislation, it bans forcefully disrupting people’s ability to enter abortion clinics and to carry out religious services. During the Biden administration, the FACE Act was used to charge a number of pro-life protesters, sometimes following dramatic arrests by militarized police.

The Act purports to be an exercise of Congress’s powers under the Commerce Clause as well as the Fourteenth Amendment. To quickly dispense with the first argument, the FACE Act does not regulate interstate activity or commerce, and the Supreme Court struck down an attempt to criminalize domestic violence relying on Commerce Clause rationales. It seems unlikely that the Court would uphold the FACE Act using them.