The 1994 Law Used to Charge Journalists: How It Works and Its History
Federal prosecutors arrested former CNN anchor Don Lemon and Minnesota independent journalist Georgia Fort on February 5, charging them under a 1994 law originally designed to protect abortion clinics from violent extremists. The charges stem from their coverage of a January 18 protest at a St. Paul church—and they’ve sparked a clash over press freedom, prosecutorial overreach, and whether documenting a protest can land you in prison.
The law in question? The Freedom of Access to Clinic Entrances Act, passed by Congress in 1994 after anti-abortion extremists bombed over 100 clinics and murdered doctors. Now it’s being used against journalists who filmed protesters disrupting a church service.
What makes this case extraordinary isn’t the novel application of the statute. It’s that a federal judge already rejected these charges once, finding prosecutors “failed to present evidence for the arrests.” When the government tried an emergency appeal to override that decision, a higher federal appeals court shut them down. So prosecutors went around both courts by asking a grand jury (a group of citizens who decide if charges are justified)—and got their indictment anyway.
What Happened at Cities Church
On January 18, approximately three dozen protesters entered Cities Church in St. Paul during Sunday worship. Their target: a pastor who allegedly worked as a local ICE official. The protest came less than a week after an ICE agent shot and killed Renee Good, a St. Paul resident, during what became known as “Operation Metro Surge”—an enforcement campaign that resulted in roughly 3,000 arrests in the Minneapolis-St. Paul area by mid-January.
Protesters occupied the main aisle and front rows, chanting “ICE out” and “Justice for Renee Good.” The service was shut down. No arrests were made that day.
Lemon and Fort were there documenting it all. Lemon, who’d left CNN to launch an independent journalism operation on Substack, livestreamed video to Instagram showing both protesters and churchgoers, interspersed with interviews. In one recording visible in court documents, he told viewers: “We’re not part of the activists—we’re reporting on them.”
Fort, a Minneapolis-based independent journalist with 17 years of experience at local television and radio stations, livestreamed the event to Facebook. She’d been covering immigration enforcement and community organizing in the Twin Cities for years—the kind of local accountability journalism that’s disappeared as newsrooms have shrunk.
The 1994 Law: From Clinic Violence to Church Protests
In the early 1990s, anti-abortion extremism had escalated into sustained domestic terrorism. The Army of God bombed and set fires to over 100 clinics, invaded 300 more, and vandalized 400 others. In 1993, Dr. David Gunn was murdered outside a Pensacola clinic by anti-abortion activist Michael Griffin.
Congress responded with the FACE Act, introduced by Representative Chuck Schumer and Senator Edward Kennedy. The Senate passed it 69-30, with 17 Republican votes. President Clinton signed it into law in May 1994.
The law made it a crime to use violence, threats, or physically block people to “intentionally injure, intimidate or interfere” with anyone obtaining or providing reproductive health services. But it also extended protections to religious institutions, prohibiting interference with people’s right to worship freely (the law’s language refers to “the First Amendment right of religious freedom at a place of religious worship”).
The law doesn’t prohibit: peaceful protest, distributing literature, carrying signs, shouting (absent threats), singing, or counseling outside facilities. What it targets is physical obstruction or threats designed to prevent access.
Penalties vary by severity. A first-time nonviolent offense carries up to six months in prison and $10,000 in fines. A first-time violent offense: up to one year and $100,000. Repeat offenses bring enhanced penalties up to three years and $250,000.
The statute explicitly states that “nothing in this Act shall be construed to prohibit any” peaceful protests, picketing, or demonstrations “protected from legal prohibition by the First Amendment.”
Thirty-Two Years of Enforcement—Until Now
From 1994 through 2025, the FACE Act was invoked almost exclusively for abortion clinic cases. The Clinton administration prosecuted 17 defendants in 1997 and averaged about 10 annually afterward. The Bush administration prosecuted roughly two per year. Applications to protect religious institutions were extraordinarily rare in federal prosecutions.
The law worked. According to the National Abortion Federation, violent incidents targeting abortion providers decreased significantly after the statute’s enactment.
Legal challenges to the FACE Act have been infrequent and largely unsuccessful. In 2014, the Supreme Court struck down a Massachusetts state law creating a 35-foot buffer zone around abortion clinics (in a case called McCullen v. Coakley), finding it violated the First Amendment. But the Court wrote its decision carefully to avoid striking down the federal FACE Act, suggesting the statute’s provisions remain constitutionally permissible.
In late January 2026, Assistant Attorney General Harmeet Dhillon announced the Department of Justice was investigating potential FACE Act violations by people “desecrating a house of worship and interfering with Christian worshippers”—specifically calling out Don Lemon for his coverage.
The Judicial Rejection Prosecutors Ignored
When federal prosecutors initially sought to charge Lemon and his producer, they presented evidence to federal magistrate judge Douglas Micko. He examined their case and rejected it, finding prosecutors had “failed to present evidence for the arrests.”
Magistrate judges generally approve arrest warrants when prosecutors present minimal evidence that a crime probably happened. A rejection at this stage signals serious problems with the government’s case.
But prosecutors weren’t done. They took the extraordinary step of seeking emergency intervention from a higher federal appeals court, asking appeals judges to override the magistrate’s decision.
Chief Judge Patrick Schiltz received notification of this request at home while caring for his mentally disabled adult son. He immediately recognized the procedural impropriety and wrote a letter to the appeals court that would become central to understanding this case.
Schiltz explained that what prosecutors were requesting—asking appeals judges to override a magistrate’s rejection of an arrest warrant—was “unheard of in our district, or, as best as I can tell, any other district in the Eighth Circuit.” If the government didn’t like the magistrate’s decision, he wrote, it could improve the affidavit and present it again, or seek a grand jury indictment. But this emergency appeal? Without precedent.
Then Schiltz dropped the bombshell. He’d examined the evidence himself: “The government lumps all eight protestors together and says things that are true of some but not all of them. Two of the five protestors were not protestors at all; instead, they were a journalist and his producer. There is no evidence that those two engaged in any criminal behavior or conspired to do so.”
The chief judge of the federal district court explicitly found “no evidence” that Lemon and his producer engaged in criminal behavior or conspiracy.
The appeals court panel rejected the government’s emergency petition on January 29. No explanation. A flat rejection.
The Grand Jury End-Run
On the same day the appeals court rejected their appeal, prosecutors convened a federal grand jury. The next day, January 30, the grand jury returned an indictment against nine defendants—including Lemon and Fort—on the same conspiracy and FACE Act charges that Judge Micko had found lacked probable cause.
This procedural shift matters. Grand jury proceedings are controlled entirely by prosecutors. There’s no judge checking whether the evidence is good enough. The defense doesn’t participate. The standard saying that a prosecutor could “indict a ham sandwich” exists because grand juries almost always return the indictments prosecutors seek.
By going to a grand jury after two judicial rejections, prosecutors circumvented the judicial scrutiny that had twice found their case wanting.
On February 5, federal agents arrested Lemon, Fort, and seven others. Attorney General Pam Bondi took personal credit on social media: “At my direction, early this morning federal agents arrested Lemon, Trahern Jeen Crews, Georgia Fort, and Jamael Lydell Lundy in connection with the coordinated attack on Cities Church.”
The Journalism Question
The indictment alleges Lemon “physically obstructed” congregants trying to leave the church and includes “multiple references to Lemon’s video of the incident,” claiming he “told viewers that the whole point was to disrupt operations.”
But video evidence shows Lemon explicitly distinguishing his journalistic role from protest participation. His recorded statements say the journalists present “were reporting on them” and were “not part of the activists.”
Media law attorney Elizabeth McNamara, who specializes in press freedom cases, put it bluntly: “I’m not aware of any precedent of using the FACE Act to charge a journalist who’s doing nothing more than covering an event. The FACE Act has an exception that says nothing in the act should be construed to prohibit expressive contact protected by the First Amendment.”
To prove a FACE Act violation against a journalist, prosecutors need to demonstrate that Lemon “was using force or a threat of force or physical obstruction to injure or intimidate or interfere with, or attempt to interfere with, the places of worship.” The evidence they’re relying on—Lemon’s livestreamed commentary and editing choices—raises questions about whether they’re prosecuting obstruction or criminalizing editorial judgment.
Lemon’s attorney, Abbe Lowell, a prominent Washington D.C. lawyer with extensive First Amendment experience, characterized the arrests as “an attack on the First Amendment and transparent attempt to distract attention from the many crises facing this administration.”
Georgia Fort’s attorney, Leita Walker of Ballard Spahr LLP, emphasized that “Fort was present at the demonstration solely in a journalistic capacity, documenting an event of significant public interest and concern.”
The Conspiracy Charge’s Reconstruction-Era Origins
Beyond the FACE Act, prosecutors charged defendants under 18 U.S.C. Section 241—conspiracy against rights. This statute has deep historical roots that make its application here striking.
Section 241 was enacted during Reconstruction as part of the Enforcement Act of 1870, designed to combat Ku Klux Klan violence against freed Black citizens. The law provides that if two or more people conspire to “injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” they face fines and up to 10 years in prison.
The Supreme Court determined in United States v. Price (1966) that Section 241 protects a broad range of constitutional rights. But there’s a limitation: a legal principle that says these rights only protect you from the government, not from other private citizens. Courts have consistently held that private actors can’t violate Section 241 when conspiring to interfere with rights protected only against government action.
The First Amendment right to free speech constrains government action but doesn’t constrain private individuals. If prosecutors are charging Lemon and Fort under Section 241 for conspiring to deprive congregants of their First Amendment right to religious freedom, they face the challenge of establishing state action or government involvement. The indictment doesn’t appear to allege that government actors were involved in the protest—a potential weakness in the Section 241 charge.
Historical Parallels: When Governments Prosecute Journalists
This isn’t the first time prosecutors have gone after journalists covering protests. The precedents are instructive.
The most iconic press freedom case emerged from the Vietnam War era. In 1971, the New York Times and Washington Post published excerpts from a classified 47-volume study of American involvement in Vietnam—the Pentagon Papers. The Nixon administration sought to prevent publication by stopping publication before it happens, arguing national security justified suppressing the newspapers’ reporting.
The Supreme Court ruled 6-3 that the First Amendment prevented the government from censoring newspapers prior to publication. Justice Hugo Black wrote that the First Amendment shields the press so the press can “bare the secrets of government and inform the people.”
But the ruling was narrow. It addressed stopping publication before it happens, not prosecution after publication. The source, Daniel Ellsberg, was charged with espionage and theft and faced up to 40 years in prison. His prosecution was dismissed after it emerged that Nixon operatives had illegally broken into his psychiatrist’s office.
A more recent parallel comes from Inauguration Day 2017. Federal prosecutors in Washington initially indicted approximately 212 people arrested during anti-Trump protests—the “J20” prosecution. Among those charged were journalists, medics, and protesters, all facing eight felonies and potentially 80 years in prison.
The government’s case relied heavily on conspiracy charges, arguing participants were collectively liable for vandalism committed by anyone in their protest group, regardless of individual participation. After multiple trials resulted in full acquittals, a federal judge discovered prosecutors had hidden evidence that would have helped prove their innocence—recordings showing protest organizers didn’t know about or intend violent conduct. The judge prohibited the government from proceeding on conspiracy charges for subsequent trial groups. Most J20 cases eventually collapsed.
Juries are often skeptical of conspiracy theories based on group association, and prosecutors face significant challenges sustaining charges based on protest participation alone.
During the 2016-2017 Standing Rock protests against the Dakota Access Pipeline, multiple journalists were arrested on charges including criminal trespass and engaging in a riot. Freelance journalist Jenni Monet was arrested in October 2016, among 76 people swept up in a mass arrest on private property.
Standing Rock journalist arrests were handled as state and local criminal charges (trespass, disorderly conduct) rather than federal prosecutions. As the Reporters Committee for Freedom of the Press noted, “the limited number of cases that have been brought against a journalist documenting a protest on private property have been handled as cases at the state level, and the charges are almost always dropped.” When Standing Rock journalists proceeded to trial, they typically prevailed.
The use of federal conspiracy charges and the FACE Act against journalists in 2026 represents a significant escalation beyond the state-level trespass charges typically brought in similar circumstances.
Implications for Press Freedom and Independent Journalism
The immediate impact extends beyond Lemon and Fort. The distinction between well-resourced national journalists with news organizations’ legal departments and independent journalists operating without institutional backup is significant.
Lemon has Abbe Lowell, one of the country’s top First Amendment attorneys. Fort, while represented by experienced counsel, exemplifies the economically vulnerable position of local independent journalists lacking institutional legal and financial support from larger news organizations.
The arrest of an independent journalist like Fort may have outsized deterrent effects on other local independent journalists considering similar coverage. That’s the “chilling effect”—a legal concept describing how threat of prosecution deters individuals from engaging in otherwise lawful protected speech.
Media law experts have noted that this prosecution, regardless of outcome, may discourage independent journalists without institutional legal support from covering controversial immigration enforcement activities. When journalists start calculating whether covering a protest might land them in federal prison facing 10 years, some will choose not to cover it.
The Committee to Protect Journalists condemned the arrests, as did numerous journalism organizations and press freedom groups.
What Happens Next
Both Lemon and Fort were released without bail following initial court appearances. Lemon was ordered to appear at a court hearing on February 9. The bail decisions suggest preliminary judges didn’t perceive the defendants as flight risks or immediate threats—a factor that may indicate judicial skepticism about prosecutorial characterizations of the defendants’ dangerousness.
The defense strategy will likely include early motions challenging whether there’s enough evidence, whether these laws can be used this way under the Constitution, and the legal foundation for the charges. Given Judge Schiltz’s prior written finding that “there is no evidence that those two engaged in any criminal behavior or conspired to do so,” defense attorneys will emphasize this prior judicial determination.
The timeline for resolution will likely extend over many months, with arguments over what evidence each side must share, filing legal motions and arguments, and potentially multiple appeals court involvement. A trial, should the case proceed that far, would require the government to prove beyond a reasonable doubt that Lemon and Fort engaged in conspiracy to deprive congregants of their First Amendment religious freedom rights, or that they used force or threats to obstruct religious services.
The burden of proof required to convict on conspiracy charges—where the defense argues the defendants were journalists, not participants—presents significant prosecutorial challenges.
Several developments will be worth watching: whether judges issue rulings questioning the legal theory underlying the prosecution; whether other defendants negotiate plea agreements or are acquitted in trial proceedings, creating pressure on Lemon and Fort’s defense; whether Congress holds hearings or introduces legislation on press freedom protection; whether international press freedom organizations maintain pressure on the administration; and whether other journalists make coverage decisions based on fear generated by this case.
The political calendar matters too. A change in presidential administration would almost certainly lead to prosecutorial reassessment and possible withdrawal of charges. Conversely, if the current administration remains in office through the case’s resolution, prosecutorial commitment to conviction may harden.
The February 2026 prosecution of journalists under a 1994 law designed to protect abortion clinics from violent extremists represents an expansion of federal criminal statutes. The dual judicial rejection of charges before prosecutors obtained a grand jury indictment, the explicit written finding by Chief Judge Schiltz that “there is no evidence” of criminal behavior, and the unusual appeals process all suggest a case built on thin evidentiary foundations and prosecuted with unusual intensity.
The outcome will signal whether federal prosecutors can deploy anti-abortion clinic protection statutes and civil rights conspiracy statutes to criminalize journalism, whether judges will enforce constitutional protections against such prosecutions, and whether journalists can safely exercise their First Amendment freedoms in a political context of increasing hostility toward press criticism of government action.
This article analyzes protest and activism tactics for educational purposes. We aim to contribute to effective and ethical efforts across the political spectrum, and we present diverse viewpoints and ideas without endorsement.