The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Government's Theory for Prosecuting Don Lemon as to Disruption of Minneapolis Church Service
The indictment in U.S. v. Levy-Armstrong has been unsealed; I excerpted the key allegations as to the disruption itself in this post. But what about Don Lemon, the former longtime CNN reporter who livestreamed the disruption?
If a person breaks a speech-neutral law in order to record and publish something, his motivation generally doesn't give him any First Amendment right to break the law. That's true as to trespass laws, wiretapping laws, and more. And that's true whether the person is working for a professional news outlet or just acting on his own.
At the same time, the government still has to show all the elements of the crime as to each defendant, and sometimes it might be unable to do that as to the person who is just trying to report on the event. An example: The crime of burglary generally (to oversimplify) requires unlawfully entering onto property with the intent to commit a further crime there, often theft. If a gang of people break into a store in order to steal from it, they may well be guilty of commercial burglary.
But if someone else walks into the store and livestream them doing it, then the elements of commercial burglary wouldn't be satisfied, because he didn't enter with the intent to commit a further crime. He is therefore not guilty—not because his acting as a journalist gives him a First Amendment immunity, but because his lack of intent to steal means the elements of the crime are absent as to him.
Lemon, together with other defendants, was indicted for violating 18 U.S.C. § 241, which in relevant part makes it a crime to
conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States
and 18 U.S.C. § 248(a)(2), which in relevant part makes it a crime to
by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.
To convict Lemon, the government has to show all the elements of the crime as to him. It has to show that he conspired with the others to oppress people in their free exercise of religion, which is to say that he entered into an express or implicit agreement with them to commit the underlying unlawful acts (§ 241). And it has to show (to oversimplify slightly) that he either personally used force or threat of force or physical obstruction to intentionally interfere with their religious worship (§ 248), or that he is guilty as a coconspirator or an accomplice.
Whether the government can do that, I assume, will be a matter for trial (or perhaps for pretrial motions practice, though I doubt that such motions will resolve the issue). Here are the government's factual allegations as to Lemon—again recall that they largely aim to prove a conspiracy between Lemon and the others, and not (with some exceptions) specific obstructive actions by Lemon:
All defendants met at a shopping center for a pre-op briefing, during which ARMSTRONG and ALLEN advised other co-conspirators, including defendants KELLY, LEMON, RICHARDSON, LUNDY, CREWS, FORT, and AUSTIN, about the target of their operation (i.e., Cities Church) and provided instruction on how the operation would be conducted once they arrived at the Church. Once at the Church, all of the defendants entered the Church to conduct a takeover-style attack and engaged in various acts in furtherance of the conspiracy….
Overt Act# 4: At the pre-operation briefing, defendants ARMSTRONG and ALLEN advised other co-conspirators, including defendants KELLY, LEMON, RICHARDSON, LUNDY, CREWS, FORT, and AUSTIN, about the target of their operation (i.e., Cities Church) and provided instruction on how the operation would be conducted once they arrived at the Church.
Overt Act# 5: On the morning of January 18, 2026, defendant LEMON began livestreaming on his internet-based show, "TheDonLemonShow," where he explained to his audience that he was in Minnesota with an organization that was gearing up for a "resistance" operation against the Federal Government's immigration policies, and he took steps to maintain operational secrecy by reminding certain co-conspirators to not disclose the target of the operation and stepped away momentarily so his mic would not accidentally divulge certain portions of the planning session.
Overt Act# 6: During a discussion with defendant ARMSTRONG at the pre-op briefing, (a) defendant LEMON thanked defendant ARMSTRONG for what she was doing and assured her that he was "not saying … what's going on" (i..e., was not disclosing the target of the operation); (b) defendant ARMSTRONG explained that "Operation Pullup" was a "clandestine" operation in which she and other agitators would "show up somewhere that is a key location, [where the targets] don't expect us … , and we disrupt business as usual. That's what we're about to go do right now."; and (c) defendant LEMON said he would see her there.
Overt Act# 7: Before heading to the Church to join his co-conspirators, defendant LEMON advised his livestream audience that, "We're going to head to the operation. Again, we're not going to give any, any of the information away" (i.e., operational details that would disclose where he and his co-conspirators were heading)….
Overt Act# 11: While enroute to the Church, defendant RICHARDSON told defendant LEMON that they had to "catch up" to the others, and defendant LEMON replied, "Let's go, catch up"; and, because he was still livestreaming, LEMON instructed RICHARDSON and an unidentified male, "Don't give anything away" (i.e., don't divulge information about the operation), and advised his audience, "We can't say too much. We don't want to give it up."
Overt Act# 12: Continuing on the morning of January 18, 2026, all of the defendants, together with other co-conspirators, entered the Church sanctuary, with the first wave positioning themselves among the congregants and the second wave, led by defendants ARMSTRONG and ALLEN, commencing the disruptive takeover operation, in which the first wave of agitators then actively joined….
Overt Act# 15: While inside the Church, defendants ARMSTRONG, ALLEN, KELLY, LEMON, RICHARDSON, LUNDY, CREWS, FORT, and AUSTIN oppressed, threatened, and intimidated the Church's congregants and pastors by physically occupying most of the main aisle and rows of chairs near the front of the Church, engaging in menacing and threatening behavior, (for some) chanting and yelling loudly at the pastor and congregants, and/or physically obstructing them as they attempted to exit and/or move about within the Church….
Overt Act# 20: Defendant LEMON told his livestream audience about congregants leaving the Church and about a "young man" who LEMON could see was "frightened," "scared," and "crying," and LEMON observed that the congregants' reactions were understandable because the experience was "traumatic and uncomfortable," which he said was the purpose.
Overt Act # 21: As the operation continued, defendant LEMON acknowledged the nature of it by expressing surprise that the police hadn't yet arrived at the Church, and admitted knowing that "the whole point of [the operation] is to disrupt."
Overt Act# 22: While the takeover operation was underway, defendant LEMON asked defendant ARMSTRONG, "Who is the person that we should talk to? Is there a pastor or something?," and she pointed toward the front of the Church but noted the pastor "might have run away."
Overt Act# 23: With other co-conspirators standing nearby, defendants LEMON, RICHARDSON, and FORT approached the pastor and largely surrounded him (to his front and both sides), stood in close proximity to the pastor in an attempt to oppress and intimidate him, and physically obstructed his freedom of movement while LEMON peppered him with questions to promote the operation's message.
Overt Act# 24: While talking with the pastor, defendant LEMON stood so close to the pastor that LEMON caused the pastor's right hand to graze LEMON, who then admonished the pastor, "Please don't push me."
Overt Act# 25: Although the pastor told defendant LEMON and the others to leave the Church, defendant LEMON and the other defendants ignored the pastor's request and did not immediately leave the Church….
Overt Act# 28: At one point, defendant LEMON posted himself at the main door of the Church, where he confronted some congregants and physically obstructed them as they tried to exit the Church building to challenge them with "facts" about U.S. immigration policy….
If Lemon is found to have conspired with the other defendants, then he could be liable as to their actions as well. But I take it that these allegations are the heart of the government's evidence that Lemon had indeed conspired with the other defendants (and, in part, that Lemon had independently engaged in obstructive actions). Consider for yourselves whether you think they suffice.
