The Don Lemon indictment: The First Amendment is not a magic cloak

The indictment of Don Lemon has triggered a familiar cycle in American politics: instant tribal sorting. For many commentators, the analysis begins and ends with whether they like Lemon, agree with his politics or sympathize with the cause he was covering. That instinct is understandable. It is also constitutionally dangerous.

The real question raised by this case is not whether Don Lemon is admirable or objectionable. It is where the First Amendment line lies when a journalist stops observing events and instead becomes an active participant in them. That line matters far more than Lemon’s notoriety, and far more than the political sympathies of either side reacting to the indictment.

From a civil liberties perspective, the indictment of a journalist should immediately raise red flags — at least initially. The First Amendment exists precisely to protect unpopular speakers, controversial reporting and coverage that makes those in power uncomfortable. Courts have long recognized that journalists may attend protests, embed with movements, ask provocative questions, and even express sympathy for the causes they cover without forfeiting constitutional protection.

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