Embedded vs. Exempt: The Journalistic Shield on Trial with Don Lemon Explained

Estimated Reading Time: 2 minutes

The media wants to talk about “First Amendment rights,” but the federal government is looking at a much more clinical standard: Physical Obstruction. When Don Lemon stood in that Minnesota church, he wasn’t just holding a microphone; he was testing the boundaries of the FACE Act.

• The FACE Act Reality: Originally designed for abortion clinic protection, 18 U.S.C. § 248 makes it a federal crime to “physically obstruct” anyone from exercising their religious freedom. The DOJ isn’t arguing about Lemon’s questions; they are arguing about his physical footprint.
• The Probable Cause End-Run: A federal magistrate originally threw this out for “zero evidence,” but the DOJ used a Grand Jury to bypass him. In the federal system, you don’t need “beyond a reasonable doubt” to put someone in handcuffs—you just need “Probable Cause.”
• The Conspiracy Threshold: Under 18 U.S.C. § 241, the “standard of review” isn’t whether Lemon yelled; it’s whether there was a “meeting of the minds.” To convict, the feds must prove he didn’t just stumble into a protest, but intentionally coordinated with the disrupters to shut down a service.
• The First Amendment Defense: Lemon’s defense is leaning on the “Journalistic Privilege” standard. They argue that documenting a protest—even one that occurs on private, religious property—is constitutionally protected work. The court will have to decide if his “embedded” status with the protesters constitutes a “shield”.

The First Amendment is a powerful shield for observers and journalists, but it was never intended to be a cloak for participants. In the federal system, the moment a journalist becomes a co-conspirator, the ‘Press’ badge stops being a credential and starts being evidence. Time will tell which side Don Lemon comes down on.

 

“Liberty is not a license to do what one wants, but a right to be able to do what one ought.” — Lord Acton

 

-The Editors