The extraordinary arrests of journalists Don Lemon and Georgia Fort last week are a dangerous escalation in the Trump administration’s attacks on the press and pose a clear threat to first amendment freedoms. Mere weeks after federal law enforcement executed a search warrant targeting a Washington Post reporter, the justice department is now pursuing criminal charges against two independent journalists for reporting from the scene of a protest in Minnesota citing – ironically – federal laws intended to protect the exercise of constitutional rights. These indictments are an affront to the first amendment of the US constitution.
On 18 January, protesters entered the Cities church in St Paul, where an Immigration and Customs Enforcement (ICE) official is a pastor, and interrupted a service with chants of “ICE out.” By all indications, Lemon, a former CNN host, and Fort, a local journalist, entered the church to cover the demonstration against the Trump administration’s immigration crackdown in the Twin Cities.
Being at the scene of a breaking news event to report as it unfolds is the job of journalists, and is activity protected by the first amendment, which expressly protects “freedom … of the press”. But according to the federal indictment unsealed Friday, the justice department is accusing Lemon and Fort of conspiring to deprive others of their constitutional rights – a felony punishable by up to 10 years in prison, a fine, or both – and with allegedly obstructing the free exercise of religion in a place of worship. These charges are an attempt to criminalize journalism.
It is unprecedented for the justice department to invoke these laws to punish journalistic activity, and there is no basis for doing so that would be consistent with the first amendment. Indeed, before the indictment, a federal magistrate judge in Minnesota had refused to sign an arrest warrant for Lemon. In a letter to a federal appeals court regarding the magistrate judge’s decision, chief judge Patrick Schiltz of the federal district court in Minneapolis, a George W Bush-appointee, noted that Lemon was a journalist and that “[t]here was no evidence” that he “engaged in any criminal behavior or conspired to do so”.
To be sure, press freedom is not the only first amendment freedom implicated by the demonstration that took place at the Cities church. Americans have constitutionally protected rights both to worship and to protest. But the federal government’s decision to pursue novel criminal charges against Lemon and Fort simply for reporting on that protest poses a unique threat to the first amendment rights of journalists and, in turn, the public.
Covering demonstrations from the ground – reporting alongside protestors, counter-protestors and law enforcement to deliver accurate, eye-witness accounts for the benefit of the American people – is a vital and constitutionally protected public service with a storied tradition in the US. From the civil rights movement and Vietnam war in the 1960s, to the January 6 assault on the Capitol and the ongoing protests against federal immigration enforcement activity in Minnesota, journalists have long acted, in the words of the US supreme court, as “surrogates for the public”, by reporting from the scene of demonstrations, keeping us informed about the causes of protestors and the actions of government, and allowing Americans to decide for themselves who is right and who is wrong on major issues of the day.
The criminal indictments against Lemon and Fort threaten to cut off that important flow of information to the public by sending a stark message to all journalists that if they cover a protest they too may be prosecuted and possibly imprisoned. The intended effect of that message – intimidating journalists into abandoning on-the-ground reporting at protests against government policy – would be a tremendous loss for the American public and for democracy. As the supreme court said in its famous Citizens United decision in 2010: “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”
The justice department’s latest actions are plainly aimed at chilling vital reporting about pressing issues of public concern, in clear violation of basic first amendment principles that the supreme court has repeatedly articulated. The court just recently reiterated the importance of ensuring speech has the “breathing room” it needs to survive, recognizing that the fear of “becoming entangled in the legal system” can deter individuals from exercising their first amendment rights. These indictments fly in the face of that ideal.
As the court declared nearly sixty years ago, freedom of the press is “not for the benefit of the press so much as for the benefit of all of us”. The arrest of these two journalists, who were just doing their jobs, is a danger to us all.
