It is a popular fallacy that freedom of the press enshrined in the First Amendment is absolute. It is not and never has been.
The recent arrest of podcaster Don Lemon on federal criminal charges that he willingly joined a mob of anti-ICE protesters who stormed a St. Paul, Minnesota church during Sunday services will inevitably test well-established limits on press freedoms.
Journalists, however defined, cannot, without legal consequences engage in incitement, defamation, obscenity, threatened violence, national security breaches, and the commission of crimes.
Calling yourself a "journalist" or claiming that you are simply "committing journalism," as Lemon has done, is not a defense. It is your behavior that the law examines. Both words and actions can reveal your intent.
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This is why Lemon has found himself in criminal jeopardy. His own digital videos seem to incriminate him.
In footage that Lemon posted online, it appears that he was not merely an observer recording the illegal protest inside the church, which would be a typical role of a reporter. Instead, he seemed to be an active participant who embedded himself with the mob and joined their cause in harassing and tormenting the parishioners.
Lemon confronted the pastor with contentious questions, the same way that the agitators accosted stunned -and perhaps fearful - congregates. You can see and hear him arguing on their behalf that they were allowed to invade the church, disrupt the service, and shutdown worshipers under the guise of the First Amendment's free speech clause.
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Not surprisingly, Lemon's arrogant lecture shows a stunning ignorance of the law. Free speech is no more absolute than freedom of the press.
In America, the right to protest does not extend to private property and certainly not to houses of worship. By law, they are protected places - secured spaces where people of all faiths can exercise their other First Amendment right to practice their religion without punishment or persecution.
There are several federal statutes that afford protection. The Klan Act of 1871 makes it a crime for anyone to conspire to intimidate and interfere with the civil rights of congregants. A different act codified in 18 USC 247 prohibits the intentional obstruction, by force or threat of force, of any person's free exercise of religious beliefs.
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However, the indictment charges Lemon with conspiring to deprive others of their civil rights and violating the FACE Act (18 USC 248). Section 2 of that law strictly protects places of worship from threats, intimidation and interference.
Predictable outrage over the charges was voiced immediately by Lemon's attorney, Abbe Lowell, who declared that it was an "unprecedented attack on the First Amendment." It was an ironic statement, given that worshipers were attacked for exercising their First Amendment religious rights.
Lowell, who represented Hunter Biden in two criminal cases resulting in convictions and guilty pleas, invoked Lemon's right as a journalist to cover events of newsworthy interest.
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But is that what he was really doing? It is the core question that will be central in any forthcoming trial. Was Lemon acting as a journalist? Or did he shed that role and, by his behavior, join the mob as a willing participant? This is where his actions and words become pivotal.
Based on video footage, Lemon knew of the protesters' plan to barge into the church and take over morning prayers. He admitted that he had done "reconnaissance" with them, some of whom were members of Minnesota Black Lives Matter. He handed out donuts and coffee to the demonstrators and vowed to accompany them on their "Operation Pull-Up."
As activists rushed into the Cities Church, so did Lemon who shoved his microphone in the face of the obviously shocked Pastor Jonathan Parnell who called the noisy intrusion "unacceptable and shameful." What followed wasn't an interview, but a condescending and belligerent dressing-down.
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"There's such a thing as a Constitution and a First Amendment," lectured Lemon, unaware that churches are protected venues and that such an antagonistic invasion constituted the crimes of trespass, disorderly conduct, disturbing a religious meeting, and violations of the FACE Act.
Whether Lemon behaved as a journalist or not is arguably irrelevant. Churches are private property, not public spaces. Access is restricted. An invitation to the general public to worship does not give rise to a right to disrupt services. Even assuming that Lemon acted as a journalist, he still committed a criminal trespass.
Indeed, when a parishioner objected that Lemon and the mob were trespassing, he glibly replied, "Nobody's fighting." That, of course, is not the litmus test for trespass. In another video, he boasted that the whole point of ruining the church service was "to make people uncomfortable." He clearly shared that goal with the mob.
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Later, Lemon appeared on a leftist podcast and described the members of the church as "entitled white supremacists," as if that somehow justified an attack on them. It is not just a despicable remark, but it suggests that the congregants were taunted because of their race, which could qualify as a hate crime.
After Lemon learned that he was the subject of a criminal investigation, he suddenly embraced the mantle of victimhood by stating, "I'm the biggest name there." As he has done before, he claimed that he was being targeted because he's a "gay black man."
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In our system of justice, Lemon enjoys the presumption of innocence. The case against him will not be an easy one to prosecute. Lowell is an able lawyer who will mount a formidable defense in casting reasonable doubt. He will also file a myriad of pre-trial motions challenging the indictment itself.
If the case does go to trial, the outcome may further define the limits of what journalists can and cannot do in the pursuit of stories. Good reporters know that their job is to cover events, not to participate in or influence them.
Lemon, who was fired from CNN, never seemed to understand this basic tenet of journalism.
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