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Last week, Liberty University President Jerry Falwell Jr. announced that arrest warrants had been issued for two journalists for allegedly trespassing on the university’s campus in the course of their reporting on the university’s COVID-19 policies. Aside from functioning as an attack on the press, the trespassing allegations raise important questions about journalists’ right to engage in newsgathering activities on private university campuses.

Campus police issued the warrants for Alec MacGillis, a ProPublica reporter, and Julia Rendleman, a freelance photographer for The New York Times. Both journalists were working on stories that highlighted criticism of Falwell’s decision to reopen partially the Virginia university’s campus during the ongoing pandemic. 

Notably, Falwell has demanded retractions of both the ProPublica and New York Times stories, referring to The New York Times as “fake news” and accusing its story of misrepresenting how many Liberty students became sick following their return to campus after spring break. Considering these circumstances, the trespassing allegations seem like retaliation against reporting that depicts the university negatively. The fact that MacGillis and Rendleman were engaged in newsgathering during the alleged trespassing incident also raises the question of whether enforcing criminal charges against them would be contrary to the First Amendment’s protection of the press.

However, courts have often held that generally applicable laws do not violate the First Amendment merely because they have an incidental impact on newsgathering. The U.S. Supreme Court endorsed this doctrine in Cohen v. Cowles Media Co., in which the Court upheld the enforcement of state contract law against a newspaper that broke its promise to a source to keep his identity confidential, writing that the “publisher of a newspaper has no special immunity from the application of general laws.1Citing Associated Press v. Labor Board, 301 U.S. 103 (1937) 

In Food Lion, Inc. v. Capital Cities/ABC, Inc., an influential case about the First Amendment and trespassing, the Fourth Circuit ruled on several claims against two ABC news producers who used false resumes to get hired at a grocery chain and secretly filmed the supermarket’s food handling practices. Citing Cohen, the court found that the First Amendment did not prevent it from applying state law against trespassing to the reporters, since the law at issue did not “target or single[ ] out the press.” Similarly, it is not likely a court would interpret Virginia’s trespassing law as targeting the press.

Furthermore, because Liberty is a private university, it has some power to keep unwanted visitors off its campus, since the First Amendment does not generally limit the conduct of private actors. The U.S. Supreme Court has ruled, however, that state constitutions — which usually contain their own free speech clauses — can be interpreted more broadly than the First Amendment. In State v. Schmid, for example, the New Jersey Supreme Court found that free speech rights could be protected even on privately owned property under the New Jersey Constitution. After conducting a balancing test that considered the “normal” use of the private property, the extent and nature of the public’s invitation to use that property and the purpose of the expressional activity at issue, the court concluded that a non-student who was engaged in political speech at Princeton University could not be convicted of trespassing. 

If the same balancing test applied in this case, MacGillis and Rendleman could have a reasonable state constitutional claim against Liberty University. Liberty University, like Princeton University, is an academic institution that normally espouses an educational mission that promotes the spread of various opinions and ideas. Private universities also often engage with the public as part of their educational mission. Thus, the “normal” uses of the university are in some ways consonant with the values of a free press; in fact, Falwell himself has written about the importance of free speech on college campuses. On the other hand, Liberty University polices on-campus activity much more strictly than many other colleges, perhaps implying that its institutional values are in fact at odds with freedom of expression (which, under Schmid, would weigh against a free speech claim).

 Of course, Liberty University is not located in New Jersey, which stands nearly alone in its expansive interpretation of its state constitution’s free speech clause. Still, Schmid shows that there is some history of a court protecting free speech specifically on a private university campus. The Virginia Constitution’s free speech clause contains very similar language to that of the New Jersey Constitution’s. Both express a right for all people to “freely speak, write, and publish [their] sentiments on all subjects,” separate from the provision that the government may not pass any law abridging the freedom of speech or of the press (which more closely echoes the First Amendment).

This blog post will not conduct an exhaustive analysis of all the potential First Amendment issues raised by the Liberty incident; nor will it delve into Virginia’s trespassing law. If Lynchburg’s commonwealth attorney does decide to prosecute MacGillis and Rendleman, the case may not turn on free speech issues. Even if the First Amendment does not prevent reporters from being prosecuted for trespassing while newsgathering, it remains to be seen whether the university has a strong trespass case in the first place. Falwell has alleged that the New York Times and ProPublica reporters ignored trespassing signs and that the reporters’ presence on Liberty’s campus posed a health risk. On the other hand, The New York Times has responded that Rendleman was invited to campus by a student, and was primarily there to take an outdoor photograph of a source. 

Regardless of the current status of the law, it is disturbing to think about journalists facing criminal charges for engaging in routine newsgathering activities on a college campus. To punish these reporters for their minimally invasive presence at the university would be a massive overreaction, and could have a chilling effect on other journalists, particularly ones from smaller news outlets who can’t easily afford a legal battle. The current state of affairs in our country calls for especially robust protections for the press. Reporters play a crucial role in spreading accurate information about COVID-19 and are already under attack by an administration that constantly undermines the credibility of news organizations.

Considering that Falwell has defended censorship of Liberty University’s student newspaper, talking to reporters from outside news reporters could be one of the few ways for students to publicly express concerns about their university’s policies. Institutions like Liberty University may be private, but they can also be incredibly powerful. We all benefit from reporting that shines a light on such places — particularly in the midst of a pandemic in which actions taken by one private actor have potentially global effects.