The indictment of Don Lemon has sparked a familiar reaction cycle: instant tribal sorting. For many, the legal analysis begins and ends with whether one personally likes Lemon, agrees with his political views, or approves of the “cause” he was covering. That instinct is understandable—but constitutionally dangerous.
The harder question, and the one conservatives should be most interested in, is where the First Amendment line lies when a journalist ceases to observe events and instead becomes an active participant in them.
That line matters far more than the notoriety of Lemon himself.
The case for concern about the indictment
From a civil-liberties perspective, indicting a journalist should raise immediate red flags. The First Amendment exists precisely to protect unpopular speakers and controversial coverage. Courts have long recognized that journalists may attend protests, embed with movements, ask provocative questions, and even display sympathy for causes they cover—without forfeiting constitutional protection.
If the government begins criminalizing journalists for proximity to unlawful activity without clear proof of intent or participation, the chilling effect is obvious. Reporters and newsrooms may avoid volatile events altogether, depriving the public of firsthand reporting. Conservative journalists covering left-wing protests and liberal journalists covering right-wing ones would be equally exposed.
The Supreme Court has consistently held that mere presence, association, or ideological agreement is not enough to establish criminal liability. If Lemon’s indictment rests on nothing more than being there, filming, narrating, or expressing approval, then conservatives should be deeply skeptical. A government empowered to prosecute journalists for “being too close” to a cause is a government with far too much discretion.
The case for prosecution when journalism crosses the line
But the First Amendment is not a magic cloak.
Journalists are not immune from criminal liability simply because they carry a camera or a press badge. Courts have also drawn a clear distinction between reporting on unlawful activity and actively facilitating or participating in it. When a journalist coordinates a movement, directs participants, obstructs law enforcement, or materially assists illegal acts, the constitutional analysis changes, and the journalist crosses the line into participant.
The precedent here is not about ideology; it is about conduct. If evidence shows -- and I think that it does -- that Lemon crossed from documenting events into encouraging, assisting, organizing, or participating in illegal action, then prosecution is not an attack on press freedom -- it is the application of a neutral law. Journalists are not immune from neutral laws of general applicability because of the First Amendment, any more than a worshiper could get out of a speeding ticket by saying he was on his way to church.
This distinction matters because collapsing it invites abuse from the other direction as well. Conservatives would rightly object if activists could shield themselves from accountability by retroactively labeling their conduct “journalism.” Every activist would simply become a “journalist.” The Constitution protects speech, not lawbreaking disguised as press.
Heightened constitutional protections for churches and worshipers
One other element often ignored in this debate is that churches and religious worship enjoy heightened constitutional protection.
The First Amendment does not merely tolerate religious exercise; it affirmatively safeguards it. Courts have long recognized that houses of worship are uniquely sensitive spaces, where interference implicates not just public-order concerns but the Free Exercise Clause itself. That is why courts have upheld buffer zones, injunctions, and time-, place-, and manner restrictions specifically aimed at preventing disruptions of worship services --often permitting greater regulation there than in traditional public fora.
While protest activity receives broad protection on sidewalks and in public squares, courts have repeatedly drawn a firmer line when demonstrations intrude on religious services, recognizing the constitutional right of worshipers to gather without intimidation, coercion, or disruption.
If some insist January 6 prosecutions were essentially correct that storming the U.S. Capitol threatens constitutional governance, they must also acknowledge that storming a church threatens constitutional liberty at its root. Religious worship is not merely expressive activity among many others, it is a protected constitutional exercise, and interference with it warrants heightened scrutiny, not casual dismissal based on political sympathy.
The hypocrisy driving the reaction
What has been most revealing is how little of the public reaction focuses on these legal distinctions at all.
Many who downplayed or justified the January 6 storming of the U.S. Capitol because they agreed with the protestors’ cause now suddenly insist that any entry into a building is an unforgivable crime. Meanwhile, many who described January 6 as an “existential threat to democracy” have minimized or excused the storming of churches, disruptions of religious services, and intimidation of worshipers because they agree with the protestors’ cause.
The inconsistency is glaring.
If storming the Capitol is an attack on constitutional order (and I think that it was), then storming a church is an attack on First Amendment religious liberty (and I think it is).
Participants in both events should have been and should be prosecuted (without heightened lawfare as some J6ers were) and afforded full due process.
The question for freedom of the press is whether the journalist acted as a member of the press or crossed the line into participant.
Constitutional principles cannot and should not be switched on and off based on personal sympathies or the event or protest cause.
The real test of constitutional conservatism
The correct standard is narrow and principled: journalists must be protected when they report, observe, and even criticize, but held accountable when they knowingly cross into participation in criminal acts. Anything broader invites authoritarian abuse. Anything looser invites lawlessness.
The Don Lemon indictment is not a loyalty test. It is a test of whether we still believe the Constitution applies neutrally, even if it protects people we strongly disagree with, or doesn’t shield from consequences people we strongly agree with.
That principle is worth defending -- precisely because we are a nation that still believes in equal justice under the law.
Editor's Note: For more from Jenna Ellis about Don Lemon and his federal charges, check out her recent interview with First Amendment attorney Jered Ede:
Notice: This column is printed with permission. Opinion pieces published by AFN.net are the sole responsibility of the article's author(s), or of the person(s) or organization(s) quoted therein, and do not necessarily represent those of the staff or management of, or advertisers who support the American Family News Network, AFN.net, our parent organization or its other affiliates.
