When Reporting Becomes a Crime: Newsgathering and Criminal Liability

by Mofe Koya, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

Beginning in January 2026, thousands of Americans have protested nationwide, calling for the removal of federal immigration agents from Minnesota following the fatal shootings of Alex Pretti and Renee Good, U.S. citizens killed by federal immigration officers during enforcement operations in Minneapolis.¹ Alongside these protesters are journalists, present to observe, document, and report on the protests and related law enforcement actions. Journalists Don Lemon and Georgia Fort were among those reporting from the scene during these protests. Their recent arrests in connection to protest coverage have raised serious questions about the scope of First Amendment protections for journalists when they are reporting.

The arrests of journalists lawfully engaged in newsgathering presents troubling risks to core First Amendment values and potentially chills protest coverage. This Article will examine the arrests of Lemon and Fort in the context of First Amendment protections and the broader role of the press in a democratic society. Part II provides the necessary background, detailing the circumstances of the arrests, the constitutional framework governing freedom of the press, and key Supreme Court precedent that establishes the protection and limits afforded to journalists. Part III analyzes the implications of the arrests for free speech and public access to information, focusing especially on the challenges that arise when reporting on matters of public concern. Lastly, this Article explores the potential consequences, and urges courts to establish clear guidelines to protect journalists’ constitutional rights while balancing legitimate governmental interests.²

II. Background

To fully understand and discuss the potential ramifications of arresting journalists, it is necessary to consider the circumstances of the arrests and the legal framework that defines journalists’ constitutional protections.

A. The Arrest

On January 18, 2026, journalists Don Lemon and Georgia Fort covered a protest in Minnesota at Cities Church in St. Paul, where the Director of a local field office for U.S. Immigration and Customs Enforcement (“ICE”) serves as a pastor.³ A livestreamed video of the protest showed a group of people interrupting services at the Church by chanting, “ICE out” and “Justice for Renee Good,” the 37-year old mother of three who was fatally shot by an ICE agent in Minneapolis earlier this month.⁴

Federal authorities later alleged that individuals involved in the protest sought to disrupt the worship service and interfere with the rights of congregants “to worship freely and safely.”⁵ During Lemon’s broadcast of the protest, “[he] clearly told viewers of his live online broadcast that he was at [the Church] to cover the demonstration, adding, ‘I’m not here as an activist. I’m here as a journalist.’”⁶ In the weeks following the protest, the Department of Justice pursued criminal charges related to the event.⁷ Initial efforts by federal prosecutors to secure arrest warrants were unsuccessful, with at least one judge reportedly concluding that probable cause had not been established.⁸ Despite these earlier setbacks, a federal grand jury in the District of Minnesota later returned an indictment charging Lemon, Fort, and others with conspiracy and interference with the free exercise of religion.⁹

On January 30, 2026, federal prosecutors publicly announced charges against nine individuals, including Lemon and Fort, for violations of federal law in connection with the protest at Cities Church.¹⁰ Lemon was arrested by federal agents at his hotel in Los Angeles pursuant to the indictment, while Fort was apprehended at her home in Minnesota.¹¹ At Lemon’s initial appearance, the government sought the imposition of a $100,000 bond, arguing that Lemon “knowingly joined a mob that stormed into a church.”¹² A federal magistrate judge declined to impose financial conditions and instead ordered Lemon to be released on personal recognizance, permitting travel with court approval.¹³ The court’s decision allowed Lemon to remain free pending further proceedings in Minnesota.¹⁴

B. Constitutional Protections for Journalists

The First Amendment of the United States Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.¹⁵

At its core, freedom of the press means the government cannot control what the media publishes or punish journalists solely for reporting on controversial matters.¹⁶ While at the time of its ratification in 1791, the Free Press Clause referred exclusively to newspapers, courts now recognize that it applies “to all forms of newsgathering and reporting, independent of medium.”¹⁷ The nation’s founders believed that freedom of the press was a necessity in their new democratic society; today, that value remains vital in ensuring that people can “criticize public officials, expose government corruption, and distribute material on virtually any subject imaginable, free from most prior restraints and other forms of censorship.”¹⁸

While the ideas of “free speech” and “free press” are often conflated, Justice Potter Stewart argued that “the First Amendment speaks separately of freedom of speech and freedom of the press [as] an acknowledgment of the critical role played by the press in American society.”¹⁹ Protection of the free press right plays a crucial role “in informing citizens about public affairs and monitoring the actions of government at all levels.”²⁰ Through newsgathering and reporting, “[a]n independent news media uses its watchdog role to investigate and report on government overreach and wrongdoing and hold those in power accountable for their actions.”²¹

Despite these constitutional protections, the Supreme Court has consistently emphasized that the First Amendment does not grant journalists absolute immunity from laws of general applicability.²² Courts have recognized both the importance of newsgathering and the limits on press access and conduct, particularly when reporting occurs in settings involving private property, government operations, or ongoing law enforcement activity.²³ The Supreme Court’s jurisprudence therefore provides the framework for evaluating when conduct associated with journalism remains constitutionally protected and when it may give rise to criminal liability.

C. Supreme Court Precedent

1. Journalists’ Heightened First Amendment Protections

The Court has given strong protections to journalists reporting on public officials and public affairs. In New York Times Co. v. Sullivan, the Supreme Court held that “where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information … and the whole thing is done in good faith and without malice, the article is privileged.”²⁴ In the Sullivan opinion, the Court wrote that “there is a great public interest that dates back to the founding of the United States in having unfettered speech and debate and argument about matters of public importance in this country.”²⁵ This emphasis on public interest and robust debate directly informed the Court’s development of a concrete standard for determining when journalists could be held liable for their reporting.

Sullivan also established the actual malice standard, requiring that public officials prove a statement was made with knowledge of its falsity or with reckless disregard for the truth in order to succeed in a defamation claim.²⁶ This rule reflects the Court’s recognition that robust reporting on government officials is essential to a functioning democracy and that journalists must have space to investigate and criticize public conduct without undue fear of liability.²⁷ The decision highlights the longstanding constitutional commitment to protecting the press when covering matters of public concern.²⁸

2. Journalists’ Lack of “Reporter’s Privilege”

Although Sullivan provides journalists substantial constitutional protections, those protections are not unlimited. In Branzburg v. Hayes, the Supreme Court confronted the question of whether the First Amendment creates a reporter’s privilege to refuse to testify before a grand jury.²⁹ The case arose after journalist Paul Branzburg declined to identify confidential sources connected to his reporting on illegal drug activity.³⁰ In a narrow 5–4 decision, the Court held that requiring journalists to comply with grand jury subpoenas does not violate the First Amendment, emphasizing that the press is not exempt from obligations shared by ordinary citizens in the administration of criminal justice.³¹

The Branzburg majority compared journalists to average citizens and stated that the First Amendment “does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons.”³² In contrast to the broad protections recognized in Sullivan, Branzburg held that journalists remain subject to generally applicable criminal laws. Thus, Branzburg clarified that although journalists receive substantial constitutional protection for reporting on matters of public concern, the First Amendment does not provide them “with special … privilege[s] not enjoyed by other citizens.”³³ Rather, courts have historically recognized that press freedoms operate alongside legitimate governmental interests and established legal limits.

III. Discussion

This section argues that the arrests of Lemon and Fort were inconsistent with core First Amendment principles. Although journalists are not exempt from generally applicable laws, the Constitution does not permit the government to use those laws in ways that burden lawful newsgathering or deter coverage of matters of public concern.

A. The First Amendment Protections and the Arrests

The Sullivan and Branzburg decisions create a boundary of constitutional protections for journalists. Sullivansafeguards reporting on matters of public concern from governmental suppression, recognizing that debate on public issues must remain uninhibited even when controversial or critical of those in power. In contrast, Branzburg, makes clear that journalists are not categorically exempt from generally applicable laws. Therefore, the government may enforce neutral laws against journalists, but it may not deploy those laws in a manner that functionally punishes or deters protected newsgathering.

This context provides the appropriate lens through which to examine the arrests and indictments of Lemon and Fort. Their reporting concerned federal immigration enforcement and resulting public protest, clear matters of public concern under Sullivan. Although their presence occurred in a location not typically open to the public, this Article argues that treating routine journalistic presence as criminal conduct is a misapplication of Branzburg. The absence of a special reporter’s privilege does not convert protected newsgathering into prosecutable conduct, regardless of where that reporting occurs. Lemon and Fort were not seeking special treatment or attempting to avoid legal obligations, they were engaged in ordinary reporting on the actions of others. Thus, their conduct falls squarely within the bounds of protected journalistic activity.

The critical question, therefore, is not whether journalists are subject to neutral laws in theory, but whether those laws were applied in a manner consistent with First Amendment limits. If the arrests were based solely on the journalists’ presence, rather than on any conduct furthering a criminal conspiracy, the enforcement shifts from neutral regulation to a constitutional violation. The First Amendment does not shield reporters from all legal constraints, but it does prohibit the government from using those constraints to chill coverage of public affairs.

Lemon and Fort were engaged in conventional reporting activity including observing, documenting, and disseminating information. If ordinary reporting is treated as criminal, the government moves from punishing illegal acts to penalizing coverage of public affairs—precisely what Sullivan prohibits. As protests surrounding government enforcement continue, courts will be required to articulate clearer standards distinguishing punishable interference from protected journalistic presence. Without such guidance, the threat of arrest may operate as an indirect restraint on the press, contrary to foundational First Amendment principles.

B. Potential Consequences of Government Actions Against Journalists

Allowing government officials to blur the line between permissible application of general laws and constitutionally protected newsgathering, particularly when the content of the news is politically sensitive or unfavorable to those in power, sets a dangerous precedent that enables selective enforcement and risks chilling lawful press activity. When journalists face arrest under generally applicable laws for remaining at the scene of a protest to document matters of public concern, the resulting uncertainty may discourage coverage of contentious events altogether.

In practice, this could allow authorities to target journalists not for legitimate misconduct, but simply for covering events that officials perceive as inconvenient, disruptive, or politically sensitive. Such an approach results in ambiguity regarding protected reporting and unlawful conduct, creating legal uncertainty about what constitutes constitutionally safeguarded newsgathering. If left unchecked, this dynamic could effectively narrow the practical scope of Sullivan, chilling journalists from reporting on public officials, government policies, or controversial events for fear of legal consequences. Overextension of Branzburg’s rejection of a special privilege threatens to convert a limitation on immunity into a mechanism for suppressing coverage central to public debate.

This Article therefore urges courts to articulate clearer standards identifying when journalists are acting within constitutionally protected newsgathering, particularly in volatile settings where criminal activity may also occur. Greater doctrinal clarity would reduce uncertainty, protect lawful reporting, and preserve the press’s ability to inform the public, while still allowing law enforcement to address genuine interference or misconduct.

IV. Conclusion

Since the arrests of Lemon and Forte, President Trump has agreed to end his deportation surge in Minnesota.³⁴ However, protests throughout the state have continued as of February 15, 2026, with residents weary about whether “Operation Metro Surge” will truly come to an end.³⁵ The persistence of public demonstrations despite official assurances reaffirms the ongoing significance of the underlying controversy—and, in turn, the continuing need for press coverage of government enforcement actions.

The arrests of Don Lemon and Georgia Fort highlight the delicate balance between First Amendment protections for journalists and the application of generally applicable laws. This situation demonstrates how enforcement actions targeting reporters—particularly in politically sensitive or contentious settings—can discourage newsgathering, limit public access to information, and weaken the role the press plays in society. Courts moving forward will need to clarify the boundary between protected reporting and conduct subject to criminal enforcement, ensuring that journalists can continue to cover public events and government actions without fear of unwarranted legal consequences. Clear judicial guidance is essential to maintaining a free and independent press capable of informing the public and holding those in power accountable.

Cover Photo by Jana Shnipelson on Unsplash

Mofetoluwa Koya

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