Is Don Lemon a Journalist? Does it Matter?
The increasingly fuzzy line between reporter and activist.
It has always been complicated to write about Donald Trump and the media.
He is certainly not the first politician to make a habit of criticizing the press (“Nattering nabobs of negativity,” anyone?), but he has done so with an almost unrivaled ferocity, referring to the media as the “enemy of the people” and saying he wouldn’t mind if journalists were shot.
At the same time, Trump has been an unusually accessible president, so much so that we have reached a point where a standing group of reporters (the New York Times’ Tyler Pager, the Wall Street Journal’s Josh Dawsey, NBC’s Kristen Welker, CBS’ Robert Costa, among others) have the president’s phone number and seem to simply call him up whenever they please. Suffice it to say, that is not how presidential interviews have normally worked, historically speaking.
Trump hates the mainstream media, but also craves their attention, which seems to have mostly held him back from turning his anti-press rhetoric into the sort of anti-press actions that his comments might suggest.
Until this year, at least. On January 14, the FBI executed a search warrant at the home of a Washington Post reporter as part of a leak investigation. Then, on January 29, a grand jury indicted and federal agents arrested former CNN host Don Lemon, now an independent journalist, after he covered — or participated in, depending on who you ask — a protest at a Minnesota church. Both of these moves are highly unusual, although their contexts are very different.
This morning, I want to drill into the Lemon case, largely because I have seen a lot of misunderstandings floating around that I’d like to correct.
On the left, Lemon’s arrest has been held up as a “disgraceful affront to the First Amendment,” in the words of House Minority Leader Hakeem Jeffries (D-NY). However, if it can be proven that Lemon committed a crime — still an “if,” as we’ll discuss — the First Amendment isn’t particularly relevant. “As a general matter, journalists don’t have any First Amendment right to break the law,” the First Amendment scholar Eugene Volokh, an emeritus UCLA law professor, told me in an interview. It can’t be used as a criminal defense if Lemon did, in fact, engage in the conduct he’s accused of.
On the right, the disruption posed by Lemon and the other defendants at the church has been held up as evidence that he broke federal law. “Disrupting a worship service? Stopping people’s right to worship God? That is violation of the FACE Act,” former Rep. Marjorie Taylor Greene (R-GA) said last week, referring to the statute Lemon was charged under. But the FACE Act actually presents quite a higher bar for conviction than that, as we’ll examine.
Over the last few days, I’ve spoken to First Amendment experts, pored over the relevant statutes, and watched several hours of video from the protest — which it seems like many of those commentating have not done. It’s become clear that the truth is much murkier than either side would have you believe: Lemon is neither automatically innocent because he is a journalist, nor is he automatically guilty because he entered a church during Sunday services.
Let’s venture to a bit of a deeper level and try to get at the truth together.
I. The Facts