Free Speech Unmuted: Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma

Jane and I, joined by press freedom advocate Seth Stern to dissect the federal prosecution of journalist Don Lemon, discuss whether covering—and allegedly accompanying—a disruptive protest inside a church can make a journalist liable for criminal conspiracy under federal laws that ban disruption of worship services.

You can also see our past episodes:

• 2025: The Year In Free Speech
• Does the First Amendment Protect Supposedly "Addictive" Algorithms?
• Defamation Law in the Age of AI with Lyrissa Lidsky
• Free Speech and the Future of Legal Education
• From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric Heinze
• Kimmel, the FCC, and the Government's Power Over Broadcast Speech
• A Conversation with FIRE's Greg Lukianoff
• A Burning First Amendment Issue: President Trump's Executive Order on Flag Desecration
• Free Speech and Doxing
• The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online
• Free Speech, Public School Students, and "There Are Only Two Genders"
• Can AI Companies Be Sued for What AI Says?
• Harvard v. Trump: Free Speech and Government Grants
• Trump's War on Big Law
• Can Non-Citizens Be Deported For Their Speech?
• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

Comments

[Joe_dallas]

simple answer - If they are there solely function as journalists (with the caveat that efforts to de-esculate would be okay) then the answer is no

If they are there as active participants, active in the planning, as was Don lemon it is also simple answer - the yes they can be prosecuted.

[Tallman]

>If they are there solely function as journalists...then the answer is no

That's too broad; lots of journalists are in jail for doing journalism things (e.g., the ones who broke the Planned Parenthood baby parts story). It's clear nowadays that journalists have to follow the same laws as the rest of us.

[Social Justice is neither]

Only some journalists

[Joe_dallas]

Tallman yes I agree -

Just highlighting the absurdity of trying to push the "journalist " exception, especially since there was not real journalism.

[shawn_dude]

Which law did Lemon not follow?

[Bob from Ohio]

The two laws he was indicted for violating, the FACE act and the Ku Klux Klan act.

[Joe_dallas]

Does anyone think that Bob can be called a journalist while filming he and his partner Dave robbing a bank and be immune from prosecution?

[Longtobefree]

"nobody is above the law" - Don Lemon
"I am above the law" - Don Lemon

Everybody is a journalist now days, nothing special about any of them.

[Area Man]

There is no special status of "journalist" under the Constitution. We all equally share the freedom of the press. So, even if someone is designated a journalist by some news organization, then they still have to abide by the law like everyone else.

If I disrupt a religious service because I'm making a news documentary on religion in America, then I've still potentially violated the law (depending on the elements of the crime in question). I don't get to just shout "Journalist!" and get off scot-free. We don't often hear this perspective, however, because the people who think being a journalist puts them above the law are the very people who have the most control over communications and narrative.

[shawn_dude]

Sure, but Lemon didn't disrupt the church services. He enters after the services were disrupted.

Your example suggests that reporters covering protests are automatically considered protesters themselves simply because they are there.

[Joe_dallas]

Your facts are wrong - dead wrong

[Social Justice is neither]

Would anyone accept his actions if done by a reporter from the Daily Stormer at an identical "protest" against the congregation of a black church done by neo-nazis? Of course not.

Don Lemon made himself a participant, not a chronicler of events so he should be treated like other participants.

[dwb68]

Hypothetical 1: A journalist livestreams a murder without intervening.

Hypothetical 2: A journalist receives an advance notice from the would be murderer, meets them in advance, and then livestreams the murder also without intervention.

Hard to see how 2 is not a crime.

#1 is a close call and depends how spontaneous the livestream and the journalists capacity to stop the murder

[SimonP]

Sorry - what laws ban “disruption of worship services?” Are you saying that this entire discussion just begs the question?

[Armchair]

The FACE act.

[Tallman]

18 U.S. Code § 248(a)(2)

[Joe_dallas]

Simon - At this point you question is simply stupid. Numerous commentators have adequately explained the law.

[Riva]

My error. Here I was thinking Don Lemon enjoyed some special immunity to engage in a conspiracy against rights and violate the FACE Act when, in actuality, all journalists enjoy these privileges. I guess this is why the founders favored the rights of the press over the right of Americans to the free exercise of their faith. Or something.

[Ruqt]

Self-identification is a non existent standard.
"Joseph Goebbels: Before becoming the Reich Minister of Propaganda, Goebbels worked as a journalist for local newspapers in the early 1920s. In 1927, he founded and edited Der Angriff (The Attack), a tabloid-style newspaper used to spread Nazi ideology in Berlin."

[Brett Bellmore]

"discuss whether covering—and allegedly accompanying"

Doesn't this misrepresent what he's accused of in the indictment, which was actual participation?

And why "allegedly" accompanying? Nobody is disputing that he accompanied them.

[shawn_dude]

Define "accompanied" in this instance. He didn't enter the church, based on the video I saw, until after the protest started. So if that's true, he traveled to the church because he had advanced knowledge of the protest but didn't join them in protesting and did not barge into the church cameras blazing while services were still being conducted. When Lemon enters, the service had already stopped.

As for the indictment, we don't know if the grand jury saw all of the evidence. It's not uncommon for the Trump administration to make stuff up, withhold exculpatory evidence, and push the boundaries of our legal system. Remember, Pretti was initially branded a terrorist by the Attorney General until publicly available evidence forced her to dissemble and walk back her lies. If video evidence had not gone public that disputed the official narrative, do you think she would have still walked back her accusations?

[Joe_dallas]

Shawn - you have made a series of posts with seriously incorrect and distorted facts. Start from square one with the correct facts.

[J_A_H]

This isn't a dilemma. Journalists can participate in protests, just as anyone else can. Journalists can report on protests, just as anyone else can. Journalists can report on criminal activity, just as anyone else can. Journalists can't participate in criminal activity, any more than anyone else could.

This wasn't a protest, it was a crime (or it was a protest that involved criminal behavior, not that it changes the analysis). Everyone either understands or should that you can't lawfully remain on someone else's property after you've been asked to leave. Everyone understands you can't barge into a place of worship and disrupt a religious ceremony. If you participate in the commission of a crime, you can be charged with a crime. It's neither complicated nor controversial.

[CindyF]

Question: Can people be charged with a crime if, while committing that crime, they hold a microphone and call themselves a "journalist"?

Answer: It depends on who they voted for in November of 2024.

Question: Can a leftist gay black man who calls himself a "journalist" be charged with any crime at all no matter his actions?

Answer: Obviously, he voted for Harris/Walz, so the answer is "No".