When Press Is Removed, Trust Is Lost

Public Access, Due Process, and the Misuse of “Private Property” Claims

Executive Summary

Public trust erodes when journalists and observers are excluded from public-facing commercial spaces—such as hotel lobbies—by reflexive invocations of “private property,” especially without clear, neutral rules or due process. Lawful authority does not end at a lobby door open to the public; it is constrained by civil-rights statutes, constitutional principles, and state law.

1. “Private Property” Is Not a Magic Phrase

Not all private property is treated the same. Properties held open to the public for commerce—including hotels—are subject to civil-rights obligations and limits on arbitrary exclusion. A hotel lobby is not a residence; it is a public-facing commercial space.

Under Title II of the Civil Rights Act of 1964, places of public accommodation (hotels explicitly included) may not discriminate and must apply policies evenhandedly. While owners retain reasonable rules of conduct, blanket or retaliatory exclusions—particularly against press engaged in lawful newsgathering—invite scrutiny.^1

2. New Jersey’s Broader Speech Protections

New Jersey recognizes broader free-expression rights under its state constitution than the federal floor. In State v. Schmid, the New Jersey Supreme Court adopted a balancing test for expressive activity on privately owned property open to the public, considering:

1) the nature of the property,
2) the extent of public invitation, and
3) the purpose of the expression.^2

Hotel lobbies—designed to invite the public for lodging, meetings, and services—fall closer to the “public invitation” end of this spectrum than to a private home.

3. Trespass Orders Require a Lawful Predicate

A trespass order is not self-justifying. Law enforcement must identify:

• a clear, lawful request to leave,
• a legitimate, neutral reason (not viewpoint or retaliation),
• and adequate notice allowing compliance.

Using trespass authority to remove press absent disruptive conduct risks prior restraint and retaliation concerns, particularly where coverage involves matters of public interest.^3

4. Police Are Not Private Security

Police authority is constrained by constitutional neutrality. When officers enforce exclusions at the direction of private actors, they must independently assess legality. Acting as de facto private security—without neutral evaluation—exposes municipalities to liability and undermines legitimacy.

5. Transparency Is the Antidote

Excluding press from public-facing spaces inflates suspicion. When access is curtailed without explanation, the public reasonably infers concealment. The result is not order—it is distrust.

Conclusion

Public order is strengthened by clear rules, neutral enforcement, and transparency. Treating every open lobby as a fortress and every inquiry as trespass undermines civil liberties and public confidence. The law provides tools to manage disruption without suppressing lawful observation.

Footnotes (Law-Review Style)

1. Civil Rights Act of 1964, Title II, 42 U.S.C. § 2000a (public accommodations; hotels included).
2. State v. Schmid, 84 N.J. 535 (1980).
3. Near v. Minnesota, 283 U.S. 697 (1931); City of Houston v. Hill, 482 U.S. 451 (1987); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
4. Compare Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (federal baseline) with PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (states may provide broader access).
5. N.J. Const. art. I, ¶¶ 6 & 18.