Hi, all.
Here is an audio podcast that might be easier for some of you to read (walking the dog, shopping, driving to/from work) than the written post below. They’re basically the same so do one or the other.
To follow up on the last post, the results of the Don Lemon poll were roughly 80/20 in favor of this being a net positive.
The judges ARE going to lean towards his claim/defense he was acting as a journalist and while you and I see advocacy and therefore a violation strictly adhering to the letter of the law, he will be able to make a credible argument that he was acting as a journalist and that is therefore protected under the First Amendment. He will argue that he was reporting and I believe he’ll argue as an opinion journalist, that he is entitled to interject his opinion and he will point out all of the other opinion journalists out there who do this.
Moreover, as Jonathan Turley points out, the line in the journalism world between activism and what most of us are used to in reporting from WAY BACK, is blurred with activism being taught now in Journalism schools as fundamental to the journalist’s work.
If you just look at many of the lead shows on Fox News, they are not only reporting the events of the day, but interjecting their opinions as well. Such an argument by Lemon will have legs. If Lemon is no longer allowed to do what he did at the church, will that further empower the Left to take down our talk radio hosts, our activists, and those who straddle the conservative world of opinion journalists, objective reporters, and what some might perceive as activism?
Give a left wing court an inch on this, and you know when in power, they’ll take a mile when indicting conservative reporters.
There hasn’t been much litigation on the FACE Act involving jouralists. In fact, the courts haven’t had the opportunity to delineate who is and isn’t a journalist, when the line between objective reporting and advocacy becomes blurred, and when one’s opinion interjected into that reporting crosses the line into advocacy.
This is one of those situations where I’d want to be careful where we come out because interpreted too narrowly, it affects us in the conservative world as well.
As many of you will recall, Steve and I were out there at the Occupy Oakland protests and marches, in their encampments, asking questions that reflected our points of view. Were we journalists? When walking along with the marchers, were we participating? Am I a journalist now? What about when I advocate for activism or armchair activism and partake in the activism I recommend, if I’m a journalist, am I crossing the line????
Think of the reporting O’Keefe does. Not long ago, Laura Ingraham kind of inserted herself into some of the protests. Think of Andy Ngo and Nick Shirley.
I suggest it might be in our interest to maintain a broad and robust interpretation of what a journalist is and what he or she is allowed to report on and how he or she can report on those things. I would like to see some clear lines by the courts delineating what is required to push an objective or opinion journalist over the line into advocacy. I sense that would involve more than words.
My gut is, as reprehensible as Lemon was, the things he said, the donuts, the glee, talking about trauma being necessary while a terrified child is cradled in his parent’s arms. I saw all of his commentary and was aware of it when I sent you the last post on Lemon, but I am certain he is going to say he is reporting on the state of mind of the protesters, giving some history of protest in this country, colored by his personal opinion, and narrating on their plans that day.
Lastly, there are state violations that can be asserted such as trespass (he went into a private building, a church, and was asked to leave and did not). But as I said in my last post, this is not likely to be pursued by the state of Minnesota given its leadership and even if it were undertaken, it is unlikely either a judge or a jury will rule against Lemon.
I waited to respond to your comments hoping to find some commentary on the Lemon issue by Jonathan Turley. We studied American Legal History under the brilliant Professor Stephen Presser, who wrote the book on the same and designed the curriculum. Turley’s knowledge of the law, our history, and the practicalities of litigation, warrant respect. I finally found something on Megan Kelly, who I never listen to.
Particularly important for so many Tea Party folks out there is Jonathan’s reminder to us all that at the time of the French Revolution, many of the Jacobins lopping off heads, were journalists who became activists and then went on to become petty tyrants themselves. He reminds us that creating a revolution is easy. It’s the after party that is not easily achieved. In our history, Thomas Paine was the righteous rage of a revolution and James Madison knew what was required to turn a revolution into a republic.
He reminds us to reflect on our own history and how we got here, the underlying principles that forged the United States and how guys like Don Lemon are cut from the same cloth as those petty tyrants of the past. I found his assessment of Lemon being a petty-tyrant-in-training compelling, as he usually doesn’t go there.
I think this was his way of messaging to us that we need to tread carefully for the purposes of the FACE Act on this issue of when a journalist crosses the line into activism. We don’t want to ignore it and allow Little Lemons to become Terrible Tyrants; but we also don’t want to restrict our journalists to the point we start fettering opinion.
If it wasn’t his messaging, then it’s what I took from it.
This wasn’t unique to the French Revolution, of course. But the point is, has Lemon crossed that line into activism and, if so, will a federal court sitting in Minnesota see it that way?
It is not clear today…regardless of the videos…if he crossed that line because there are no legal standards set for that, yet.
As it applies in this case, the FACE Act requires physical obstruction to intentionally interfere with or intimidate persons from exercising their religious guarantees under the First Amendment. Intention will be hard to prove.
Moreover, the penalties for a first time offense are up to $10,000 and up to 6 months’ imprisonment.
Sally
