Dem
47
GOP
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It is not a secret that a large part of the reason that the Department of Justice is going after journalist Don Lemon is to intimidate other journalists who might dare to cover ICE invasions and other abuses of authority by the Trump administration. By and large, the folks who become journalists do not respond well to these kinds of shenanigans, and tend to become more committed rather than less. But whether it will work or not, intimidating journalists is part of the plan.
As it turns out, there looks to be a second part of the plan, as well. Recall that Lemon was on the site of the in-church protest targeting an ICE agent who is also a pastor, and was, by all accounts, covering that protest as a reporter. The administration tried to get him indicted on standard charges, like trespassing, and a judge refused to sign off on the indictment, citing a little thing called the First Amendment. That meant the matter never even reached a grand jury.
Because the administration desperately wants to use Lemon to intimidate other journalists, someone in the Department of Justice apparently hit the law library, so as to find an alternative pretext for going after him. "Attorney General" Pam Bondi, by all appearances, is not the sharpest tool in the shed. But she must have at least a couple competent people working for her, we assume. And we further assume that it was one of those people who came up with the charges that passed muster enough for a judge to sign off on them.
Lemon is now charged with violating two laws. The first is the Conspiracy Against Rights Act, which forbids someone from interfering with the exercise of the constitutional rights of another person. The second is the Freedom of Access to Clinic Entrances Act (FACE Act). The FACE Act was passed in 1994 and signed into law under Bill Clinton. It's a little weedy, but the way the sausage-making went, the Republicans wanted to stop people from protesting at churches and the Democrats wanted to stop people from protesting at abortion clinics. So, they rolled both into the same bill, with the legal basis being that both situations involved protesters infringing on people's exercise of their constitutional rights.
The anti-choice folks hate the FACE Act, of course, because they want to be able to picket abortion clinics without risk of being arrested. They also take the position that, since Dobbs, access to abortion is no longer a constitutional right. So, the basis of the law no longer holds.
There was an attempt to get a FACE case before the Supreme Court last year, with the hope that the Supremes would strike the law down, but it's a potato that was too hot even for John Roberts & Co., so SCOTUS declined to hear the case. The Lemon case is a second attempt to get a FACE case before the Supremes, in hopes they will finally strike it (and maybe the Conspiracy Against Rights Act) down, allowing abortion-clinic protesters to go hog wild when they harass women seeking abortions and doctors who perform abortions.
We doubt this will work. Lemon would have to challenge his indictment on the basis that the FACE Act is not constitutional, with the case then working its way up the ladder to SCOTUS, and SCOTUS actually accepting the hot potato this time. But surely Lemon is going to defend himself on First Amendment grounds, arguing that a journalist is not subject to the laws that govern protesters, and that the charges against him are therefore not valid. Still, if you're a DoJ lawyer looking for a Hail Mary cause of action that might be enough to get by a judge and a grand jury, and you can swing a bonus Hail Mary shot at getting rid of a law that anti-abortion forces hate, you're certainly earning your paycheck. Because once courts and juries get involved, you just never know. (Z)