Conservative First Amendment Lawyer Speaks up in Support of Don Lemon, but Believes Protesters Should Be Charged.

First Amendment lawyer, Marc Randazza, says he is “reluctantly” rising to defend Don Lemon and believes bringing charges against the former CNN commentator over his role in the incursion at the Cities Church in Minneapolis is a bad idea.

This incident occurred when a group of approximately 40 anti-ICE protesters disrupted a Sunday church service at Cities Church in St. Paul, Minnesota. Activists entered the building, chanting slogans such as "ICE out" and "Justice for Renee Good," and confronted parishioners. The protest targeted a pastor at the church who protesters claimed was also an ICE officer.

One of the protesters was Lemon, who, after being fired by CNN in 2023, now has a podcast.

The protesters and Lemon claimed their attack on the church was a legitimate exercise of their First Amendment rights. Randazza asserts that while the First Amendment does not shield the incursion, it could shield Lemon. And even if it did not, the negative optics of prosecuting Lemon would outweigh the benefits.

The government claims that when the protesters entered the church, they violated the Freedom of Access to Clinic Entrances (FACE) Act (18 U.S.C. § 248): This law prohibits the use of force, threats of force, or physical obstruction to intentionally injure, intimidate, or interfere with individuals seeking or providing reproductive health services or the exercise of religious freedom at places of worship. It is a law where Democrats wished to stop people from interfering with abortion providers, and Republicans compromised by saying, “Protect churches too, and you have a deal.”

“Had the protesters remained outside the building, and not interfered with the services inside, they would have been within their First Amendment rights,” said Randazza. But once they breached the doors of the building and acted to disrupt the religious service, they crossed a line, and I find no First Amendment problem with charging them with violations of the FACE Act.

“The First Amendment gives you a right to protest in a public forum,” he said. “It does not give you a right to protest on private property, nor to disrupt a religious service.” The First Amendment protects you from the government stifling your speech, it does not compel a church to host a protest that it never invited – and especially not when it disrupts their freedom to worship.

Don Lemon filmed himself before the incursion in a role that made him seem like he was part of the protest, rather than simply reporting on what the group was doing. “When you report the story, you are a journalist,” said Randazza. “When you make yourself part of the story, you might fall outside that definition. You do not get to do whatever you want just because you have a camera and a microphone.”

Given that Lemon seems to have made himself part of the story, the government charged him as well. Here’s the problem, as Randazza sees it — “it is a close call, and if it were up to me, I would not use my discretion to prosecute an enemy journalist — not even if I might win.”

To convict, the government must show that a defendant used force, threat of violence, or physical obstruction to impede the church services. “It does not appear that Don Lemon did any of those things directly, but he was definitely part of a group that did.” Said Randazza. “My point is not that Lemon is innocent; my point is that we should give breathing room to the First Amendment.”

Randazza does not claim that Don Lemon could do whatever he wanted because he was holding a microphone, but the pastor engaged with Lemon in his journalistic capacity. “Don Lemon was interviewing the pastor during the unlawful incursion.” Randazza said, “The pastor seems to have voluntarily given that 49-second interview. His participation in it ratified Lemon’s presence, whether he intended to or not.”

With respect to the organizers of the incursion, Randazza maintains a different view. Nekima Armstrong, Chauntyll Allen, and William Kelly, all key figures in the organized disruption at the church, have been charged, and Randazza finds no viable First Amendment defense for their actions.

“The right to protest in a public forum is sacrosanct,” said Randazza.

“This was not a public forum. Had they remained outside, I would have defended them myself. But they intended to and did enter private property to deprive the parishioners of their First Amendment rights, and their actions meet the statute’s requirements. They have no viable First Amendment defense.”

Randazza said that although he does not approve of Lemon’s actions, they have sufficient First Amendment cover, making prosecuting him an unreasonable risk. “Lemon could be found guilty, but it is close enough of a call that I am against seeing him prosecuted,” said Randazza. “The First Amendment needs breathing room, and you stifle that breathing room by prosecuting close calls like this.”

Randazza sees problems other than the constitutional issues. "Charging Lemon makes him a First Amendment martyr. They should leave him on the table as an unindicted co-conspirator.”

“Don Lemon is a hack worthy of no respect, but once the Pastor ratified his presence by consenting to the interview, he at least partially shrouded Lemon in the First Amendment.” Randazza does not see this as “fascism” as some claim, but just as a “really stupid decision.”

Randazza has a hypothetical for those who think that charging Lemon is “fascism.”

“Imagine there’s a protest outside an abortion clinic. The protesters bust in, screaming at the women, and the clinic has to shut down for the day, and Tucker Carlson is with them. He corners the doctor and interviews him,” Randazza suggested. "If you would be ok with charging Tucker, then you need to be OK with charging Lemon."

That said, Randazza says he would not charge Lemon if it were up to him.

“I can’t stand Don Lemon, nor can I stand that he was part of this, even with that bias. I see the First Amendment defenses here. Don Lemon either walks out of this victorious or gets convicted, and with his martyr status, he becomes a senator.”

“I will remind people that the Biden DOJ arrested Journalist Steve Baker for reporting on January 6. He had a tripod and a camera and was clearly there as a journalist.” Said Randazza. “Lemon is certainly worse than that, but I think Republicans should rise above that and set an example. Charge all those who barged into that church, but not Don Lemon, even if he technically deserves it.”