Published 4:58 PM EDT Oct 15, 2018
Don Lemon, host of CNN Tonight, had an on-air meltdown last week that culminated in this declaration to his audience:
"In the Constitution, you can protest whenever and wherever you want. It doesn’t tell you that you can’t do it in a restaurant, that you can’t do it on a football field. It doesn’t tell you that you can’t do it on a cable news show, you can do it wherever you want. To call people mobs because they are exercising their constitutional right is just beyond the pale.”
This is largely nonsense, and dangerous nonsense at that. But if a respected journalist like Lemon can be so completely mistaken about how the First Amendment works and the exercise of free speech in a civilized society, then anyone can.
The First Amendment covers a lot of territory, including freedom of religion, freedom of the press, the right to assemble and the right to petition for redress of grievances. But when most people think of the First Amendment, they think of freedom of speech, which includes the freedom to protest.
No right to protest on private property
But the First Amendment doesn’t actually give you the right to free speech, and it certainly doesn’t give you the right to protest “whenever and wherever you want.” Instead, it prevents the government — and only the government — from interfering with your right to free speech. With a few exceptions, anyone else, including a restaurant, a football team or a cable news network, can act to limit speech any way it likes.
In other words, you have no constitutional right to protest on private property. If you decide to stage a demonstration at a restaurant, the restaurant can ask you to leave and have you arrested for trespassing if you refuse. If you decide to engage in political protests at work, you can be fired. You have a right to speech free from governmental interference, but you do not have a right to free speech on someone else’s dime. I am sure that Lemon himself appreciates that CNN is not required to allow guests whom they find offensive or disruptive to use CNN to broadcast their message.
This is not to say that the right to protest can or should be restricted. The framers of the Constitution viewed free speech as a necessary element of a civilized and functional society. As with everything, though, there is a time and a place for it.
More: Tomi Lahren: Free speech doesn't give you the right to attack someone
Deniers of the war on free speech on college campuses are dead wrong
Free speech on college campuses is making a comeback: Jeff Sessions
Which brings up an even more fundamental question. Just because something is legal — or you can get away with it — does not mean that it is good. We too often forget that freedom comes with responsibility.
A few years ago, there was a guy in San Francisco who dressed up as Elmo from Sesame Street and then shouted obscenities at children. Illegal? No. Evil Elmo was protected by the First Amendment. Something that no civilized person would ever imagine doing? Absolutely.
That was an easy one. I think we can all agree we don’t want to live in a society where dressing up as a beloved cartoon character and traumatizing children is considered acceptable behavior. Even if it’s a constitutional right.
But do we want to live in a society where anyone can be hounded anytime, anywhere because of his political views? That should be an easy one, too. The answer is no.
Calling out a mob is the right thing to do
There is no question that the group of people who ambushed Sen. Ted Cruz, R-Texas, in a restaurant a few weeks ago qualified as a mob and a mob that meant to intimidate and frighten. And they were proud of it, too:
“This is a message to Ted Cruz, Brett Kavanaugh, Donald Trump and the rest of the racist, sexist, transphobic and homophobic right-wing scum. You are not safe. We will find you. We will expose you. We will take from you the peace you have taken from so many others.”
This is not the kind of society I want to live in. It is not a civilized society at all. It is a society where extremists on both sides terrorize everyone else into silence, a society where the opposite of free speech prevails.
There is much that is broken in our political system. Even so, we cannot restore civility and reason through intimidation and fear. Don Lemon was wrong. Calling out a mob, even if it happens to be exercising a constitutional right, is not beyond the pale. In fact, it’s the right thing — the only thing — to do.
Chris Truax, an appellate lawyer in San Diego, is on the legal advisory board of Republicans for the Rule of Law.