The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One Way to Think About the Don Lemon Prosecution
It's a pretty obvious way to think about it, but I thought it might be the sort of obvious that was still worth making explicit:
Imagine a right-wing advocacy group is very upset about a mosque, because it thinks one of the imams is a supporter of anti-American Islamic extremism.
They go to the mosque in the middle of services, and start shouting "the time for Judgment had come," blowing whistles, chanting "Muslim Extremists Out!," "Remember 9/11!," and the like. They approach the imam and congregants in a way that some perceive as menacing, and loudly berate the imam with questions about jihadism and Muslims wanting to implement Sharia.
They chant, "This ain't God's house. This is the house of the devil." They approach a female congregant, who is there with two young children, and demand to know in an allegedly hostile manner why she doesn't support the protesters. They call people "Nazis," and ask children, "Do you know your parents are Nazis? They're going to burn in hell."
They block the stairs leading to the mosque's childcare area and make it difficult and allegedly hazardous for parents to retrieve their children. After causing most of the congregants to flee, some of them chant, "Who shut this down? We shut this down!"
There's a person accompanying them to livestream the events to his large audience. He's generally politically aligned with their message, so there's reason to think he shares their goals. He understands the whole point of what the other defendants were doing is to make things "traumatic and uncomfortable" for the congregants: He tells his viewers that "the whole point of [the operation] is to disrupt."
While the intrusion is happening, he asks one of the disrupters, "Who is the person that we should talk to? Is there an imam or something?" He joins the others in approaching the imam and largely surrounding him, standing close to him and peppering him with questions. He doesn't leave when the imam asks him to leave. He stands at the main door of the mosque, where he confronts some congregants and allegedly physically obstructs them as they try to exit the mosque to challenge them with what he says are "facts" about extremist Islam.
Before the incident, he had met all the other defendants for a pre-op briefing, during which the organizers advised the other defendants and him that their operation would target the mosque, and provide instruction on how the operation would be conducted. He is careful to maintain operational secrecy by reminding his driver not to disclose the target of the operation, and he steps away briefly during the planning session so his microphone wouldn't accidentally divulge certain portions of what the planners are saying. He assures the other defendants that he won't prematurely disclose the target of the operation.
Would you be inclined to think that the livestreamer is guilty of conspiring with others to physically obstruct the worship services? Or would you say that there isn't enough evidence of conspiracy, which is to say (to oversimplify) an express or implied agreement to act in concert in order to accomplish the disruption?
As you might gather, the hypothetical facts above are closely drawn from the allegations (which of course at this point are just allegations) in the Don Lemon indictment (see here and here), but changed to reflect the hypothetical right-wing disruption of the mosque rather than a left-wing disruption of a church.
