“Fake News” — that’s why President Trump says he banned CNN, MS NOW, and Politico from the White House. Since our country’s founding, presidents have bristled at the press. What’s different here is barring entire news organizations from the White House grounds because the president dislikes their reporting.

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Now the three outlets have sued. “This ban could not be a more direct assault on the First Amendment nor a more blatant violation of our most fundamental constitutional principles,” they allege in their complaint.

The outlets also point to a nearly 130-year tradition of independent reporting stationed inside the White House. While an independent press can trace its roots all the way to the founding, the tradition of having reporters stationed permanently inside the White House began taking shape in the late 1890s. Most famous was the Washington Evening Star’s William “Fatty” Price, who started his tenure as a White House reporter by staking out staff and guests outside the White House’s North Portico.

Price’s column, “At the White House,” was so successful that other reporters quickly caught on. A permanent White House beat was born. In 1896, Price wrote to President Grover Cleveland’s staff thanking them for “brightening up our table” inside the White House. Price, who described himself as “dean” of the fledgling White House “newspaper gang,” chased tips and reported on what he saw and heard inside the White House.

In his words, “There is no giving out of prepared news … Sometimes it’s a question of hard digging, as the miner put it, to unravel a story.”

Cleveland’s successor, President William McKinley, continued the relationship. By early 1898, McKinley had given Price and his “gang” a table in the White House’s second-floor corridor. At the same time, McKinley’s staff asked reporters to stick to those “proper facilities.”

That original arrangement was mutually beneficial. Presidents gained a regular channel to the public, while reporters gained a means of access inside the White House that let them independently observe and report on the presidency.

But some friction was inevitable. In 1913, President Woodrow Wilson made a remark about the ongoing Mexican Revolution he understood to be off the record. When the comment appeared in a New York newspaper, Wilson was “furious” and threatened to end presidential press conferences altogether.

He didn’t. Instead, Washington correspondents proposed rules to formalize White House access, and Wilson agreed. Reporters would not quote the president without his consent, and attendance was limited to accredited journalists. Six months later, after another dispute over stock market “tipsters” crowding into Wilson’s press room, White House reporters formed their own organization to police the rules: the White House Correspondents’ Association, headed by none other than Fatty Price.

In that moment, both reporters and the president treated their inevitable tension as something to manage — not a reason to shut the press out.

By the 1920s and 1930s, the White House press corps had become more than a group of reporters the president tolerated having around. In 1926, President Calvin Coolidge told reporters that accurate reporting of the presidency was “rather necessary to the carrying on of our republican institutions.”

But Coolidge did not think that meant dictating his own account of what happened inside the White House. He preferred to leave that work to the reporters, who could draw their own conclusions and interpretations — what Coolidge called the “art of reporting.” Coolidge put it simply: “I don’t want to compete with your business.”

Three years later, at his final press conference, Coolidge emphasized that point: “I have left the work of reporting the affairs of my administration to the experts of the press. Perhaps that is the reason that the reports have been more successful than they would have been if I had undertaken myself to direct them.”

President Franklin D. Roosevelt did more to secure the White House press corps’ independence. At his first presidential press conference in 1933, FDR scrapped the practice of requiring reporters to submit written questions in advance. He understood the political risk of that move, telling reporters they would ask questions “I do not want to discuss, or I am not ready to discuss, or I do not know anything about.”

He opened the floor anyway.

In the ensuing decades, tradition governed the relationship between press and president, though not always because presidents welcomed it. President Richard Nixon kept an enemies list and barred Washington Post reporter Judith Martin from his daughter’s 1971 White House wedding over her coverage of the family. In 2009, the Obama administration sought to marginalize Fox News, with Chief of Staff Rahm Emanuel saying the network was “not a news organization so much as it has a perspective,” and initially excluded Fox from a round of interviews with a Treasury official before backing down.

Eventually, courts had to address what happens when a president tried to take such access away.

In the 1977 case Sherrill v. Knight, the Secret Service had denied journalist Robert Sherrill a White House press pass, citing vague security concerns. The U.S. Court of Appeals for the D.C. Circuit held that “arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment.”

The White House did not have to “open its doors to the press, conduct press conferences, or operate press facilities” in the first place. But once it had chosen to do so, the court said, access could not be granted arbitrarily. Nor was that protection only for reporters. “The public at large,” the court explained, also has a First Amendment interest in preventing arbitrary exclusion from sources of information.

Trump is similarly claiming CNN, MS NOW, and Politico pose a vague security risk, but that’s unlikely to stand under Sherrill and the precedent developed since.

For generations, White House reporters have been expected to do things that often bother presidents: interpret what they see at the White House and report it to the public. It’s what Fatty Price called “hard digging,” what Coolidge described as the “art of reporting,” and what FDR knew would sometimes produce questions he did “not want to discuss.”

Reporters do those things not to please the president, but to inform the public about our nation’s highest office. The entire arrangement rests on accepting and inviting the tension between reporters and politicians.

Ultimately, though, this isn’t just about CNN, MS NOW, and Politico. If Trump can ban any outlet whose reporting he dislikes from the White House halls, a future Democratic president could just as easily ban Newsmax, Fox News, or Breitbart. And it’s often the outlets a president perceives most hostile to his cause that stand to reveal the most about his administration.

At the height of World War II, Gen. Dwight D. Eisenhower didn’t want the military’s independent newspaper to become a propaganda tool. He expected his subordinates to keep their “hands off” Stars and Stripes. More than 80 years later, the Pentagon has fired the newspaper’s leaders after they publicly defended that very principle.

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Last week, the Pentagon fired Erik Slavin, editor-in-chief of Stars and Stripes, for “insubordination.” Slavin says he was fired for telling CBS in a recent interview that it would be a “red line” if the government told him, “Don’t run a perfectly accurate story. Run this instead. Here it is, written by the Pentagon.” The Pentagon also fired Middle East reporter Lara Korte and publisher Max Lederer. In announcing his retirement just days before, Lederer had said the paper’s “value and mission” differed “in fundamental ways” from the direction of the Pentagon’s leadership.

Eisenhower protected the paper because he understood that soldiers who cannot read the truth cannot be trusted to fight for it. Servicemembers now have reason to wonder whether what they are reading is independent news, or something the chain of command has approved before it reaches the press.

Stripes is funded and operated by the military, but the Department of Defense itself imposed rules for decades requiring the paper to operate independently of military command, with “a free flow of news and information.” The rules also explicitly gave Stripes reporters the same right as commercial journalists to ask questions and gain access.

Stripes wasn’t always fully independent. Though the original was founded to provide news to servicemembers on World War I’s Western Front, it was mired in censorship. The paper’s Board of Control battled the editorial leadership over content, with its founding officer Guy T. Viskniskki removing stories that might hurt morale on the front. However, other sources — including the paper’s final issue during this initial run — claim it maintained editorial independence. The paper was shut down at the end of the war, but the idea that the military could offer an independent newspaper survived.

In 1942, when Eisenhower helped revive the paper, Gen. George C. Marshall called it “a symbol of the things we are fighting to preserve and spread in this threatened world. It represents the free thought and free expression of a free people.”

Eisenhower enforced that principle. In 1945, Gen. George S. Patton threatened Stripes cartoonist Bill Mauldin over his “Willie and Joe” comic strip, in which Mauldin mocked Patton’s strict rules requiring frontline soldiers to remain clean-shaven at all times. Patton called the cartoon characters “goddam bums,” berated Mauldin in his office for 45 minutes, and threatened to throw him in jail. But Gen. Eisenhower, then the supreme allied commander in Europe, told Patton to back off.

The tension didn’t disappear after World War II, and it became especially vivid in Vietnam. In a 1970 article filed from Saigon, Stripes reporter Bob Hodierne wrote how a soldier whose company had been mauled at Hamburger Hill probably knew less about the battle than his mother back in Des Moines. That is, unless he was lucky enough to get his hands on a copy of the Pacific Stars and Stripes. “Stripes was the one place,” he explained, “that G.I.’s could sometimes read about the shooting, bleeding, bombing, gassing, dying, and killing.”

Hodierne added, “Daily calls to the paper’s Saigon bureau about stories that just didn’t do the military any good were so common that if a day went by when one didn’t come in, the civilian bureau chief, Pat Luminello, would fret.”

One senior officer objected to the paper calling Hamburger Hill “Hamburger Hill,” rather than using the military designation “Hill 971.” Another senior officer was more up front about the basic problem, repeatedly complaining that “Stripes reporters asked questions.”

But that was, of course, the whole point. The military didn’t need another publication that simply repeated what commanders wanted troops to hear. Servicemembers already had official channels for that. What they needed was a newspaper that would tell them what was happening, including what was going wrong.

By the late 1980s, recurring allegations of censorship and command influence became serious enough for Congress to investigate. It instructed the Department of Defense to “manage” the “inherent conflict” between censorship and military objectives. Shortly thereafter, the DoD codified regulations requiring Stripes to operate free from “news management or censorship,” complete with a civilian editor.

The Pentagon has now dismantled much of that framework. On Jan. 15, it removed the old regulation from the federal rulebook, saying the same rules would now be covered by a separate Defense Department directive. But a March 9 memo imposed new restrictions on what Stripes could publish, banning wire-service and syndicated content (even cartoons), restricting FOIA requests, imposing a “good order and discipline” standard, and expanding Defense Department oversight of editorial decisions.

Then when Slavin and Lederer raised concerns about this, the Pentagon fired them. The Pentagon also fired Korte for covering topics the administration disfavors — including, of all things, Bad Bunny concerts. And when ombudsman Jacqueline Smith, the person tasked with defending the paper’s independence, criticized the rule change, the Pentagon fired her too. All because the Pentagon wants to eliminate purported “woke distractions” at the paper.

Announcing the rule change, the Pentagon’s top public affairs official Sean Parnell posted on X:

We will modernize its operations, refocus its content away from woke distractions that siphon morale, and adapt it to serve a new generation of service members. Stars & Stripes will be custom tailored to our warfighters. It will focus on warfighting, weapons systems, fitness, lethality, survivability, and ALL THINGS MILITARY.

Stripes has always focused on “warfighting.” That’s not what’s at issue. What is in dispute is whether those boys at Hamburger Hill had the right to know what they had survived just as well as their mothers back home. It’s a dispute about whether the paper will continue to represent a beacon of press freedom within the world’s most powerful military.

Where World War I officers censored content to improve morale, their World War II counterparts declined to censor for the same reason. Eisenhower and his compatriots realized that morale depends on credibility, because you can’t inspire someone to push on if they don’t believe what you’re saying. True morale derives from the spirit of freedom: the enduring feeling of control over what you say, read, and think. At its best, Stars and Stripes harnessed that feeling for servicemembers. It exemplified that true freedom of speech and freedom of the press lies in the ability to speak critically about your country — even (and especially) during wartime.

Bob Corn-Revere is chief counsel for FIRE and he served as chief counsel to former FCC Chair James H. Quello.

Now that ABC Network has sued the Federal Communications Commission for violating the First Amendment in response to your unprecedented gambit of seeking to deny renewal of its television station licenses, I suspect you are not feeling a lot of love these days.

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It is widely said that you are nothing but a political hack who sold out your previously professed beliefs about free expression and the rule of law for the short-term goal of being named FCC chairman, that you corrupted the agency’s nonpartisan purpose by focusing its efforts on punishing perceived critics of the Trump administration, and that you regularly prostrate yourself with cringe-worthy displays of servility to soothe the president’s fragile ego.

All these things may be true. But the criticism is terribly unfair because it fails to acknowledge your substantive accomplishments. When the dust settles, it may turn out that you have done more than any FCC chairman since the agency’s creation in 1934 to advance full First Amendment protection for the broadcast medium.

For starters, you have become a catalyst for bipartisanship. You united 13 former top FCC officials from across the political spectrum to publicly oppose your various efforts to punish ABC (and the number is 14, if you count me, who filed a separate opposition). This impressive list includes six former commissioners (four of whom served as chairman), chiefs of staff, bureau chiefs, and a general counsel. Three of the four former chairmen are Republicans.

Bringing together a group of individuals who hold sharply different views on politics and broadcast policy is no small feat. I don’t know of anyone else who could have managed it. But Ronald Reagan’s FCC chair, Mark Fowler, crystallized the motivation for this kumbaya moment in a sworn declaration filed in the ABC lawsuit: “Never in its history has the agency ever acted so corruptly and unlawfully to intrude on broadcasters’ First Amendment rights.”

As it turns out, your bad example has proved to be a powerful unifying force. And the feeling may well be unanimous. There is not a single living former FCC commissioner or high-level staff member who has publicly endorsed your stated views of the law or your actions against ABC. So, congratulations.

Another accomplishment is that you brought the Commission’s jawboning out in the open. Jawboning is the practice of misusing regulatory processes and employing threats to coerce the government’s targets into silence. The Supreme Court recently —and unanimously — reaffirmed that such tactics are illegitimate and unconstitutional. The FCC has long been guilty of this practice, and commissioners of both parties have engaged in it. Just never so openly or to this extent.

But jawboning cases were always notoriously hard to prove because the pressure tactics usually were brought to bear in back rooms and behind closed doors. That is no longer true. In your zeal to curry favor with your boss, you have made your threats openly on social media and at other venues. You have reposted and amplified President Trump’s dyspeptic rants about the media and his condemnation of certain on-air personalities.

Most notorious was the podcast interview where you delivered an ultimatum to the Disney Corporation (owner of the ABC network) that it must do something about late-night host Jimmy Kimmel “or there will be additional work for the FCC ahead,” adding, “we can do this the easy way or the hard way.” Simply breathtaking. Not since the term “wardrobe malfunction” was coined to describe the 2004 Super Bowl incident with Janet Jackson and Justin Timberlake has a phrase associated with an FCC proceeding inspired such widespread reaction (and mockery).

Ted Cruz, the Republican chairman of the Senate Commerce Committee, called your remarks “dangerous as hell,” likening them to a mafioso threat. Your Kimmel ultimatum even caught the attention of Supreme Court Justice Neil Gorsuch, who called it out in his concurrence in Trump v. Slaughter. After citing your remarks and expressing concern about the accumulation of executive power, Justice Gorsuch suggested the courts may need to become more active in checking its misuse.

And this foreshadows what may be your most lasting achievement. The campaign against ABC through a series of escalating demands, abusive investigations, and the threat to its licenses has given the network no realistic option but to sue the FCC. The lawsuit sets forth in vivid detail the many ways in which the Commission has abused its own processes, violated due process, and ignored the law in retaliation for being on Trump’s wrong side. The FCC’s actions betray the agency’s purpose and violate the First Amendment.

But by overreaching to the extent that you have, the FCC under your management has opened the door for a judicial response even before the end of your ABC show trial. That change of venue takes the matter out of the FCC arena, which currently is run by political whim, and into court, which is governed by the rule of law. It also takes the timing out of your hands, where the game has been to slow-roll the process to make it as painful and expensive as possible.

Judicial oversight promises to end not only your current abuses but could lead to more lasting positive changes in the law. As a regulated medium, broadcasting has been subject to less robust First Amendment protections under obsolete precedents like Red Lion Broadcasting Company v. FCC. Although the FCC never had the authority to regulate broadcast programming in the ways you now claim, courts up until now have been reluctant to overrule it for lack of a clear case of FCC overreach. You have solved that problem in spades.

Once in court, it will be difficult to avoid dealing with these old precedents, which are the elephant in the room. The process of correcting the law began in the 1980s when the FCC under Mark Fowler eliminated the FCC’s fairness doctrine because it was inconsistent with the First Amendment. And now, with your ongoing demonstration of just how partisan and out-of-control the Commission can be, it is, as Justice Gorsuch put it, “time to return, all the way, to the Constitution.”

And that will be your true legacy. These positive developments may just be the result of your unprincipled blunders, but they are accomplishments nonetheless. Thank you, Brendan Carr.

Douglass Mackey and Don Lemon likely agree on almost nothing.

Mackey is the pseudonymous pro-Trump provocateur who, as “Ricky Vaughn,” built a large Twitter following during the 2016 campaign, including with two false vote-by-text memes that eventually made him (briefly, until an appeals court threw out the conviction) a felon: images telling Hillary Clinton’s supporters they could skip the polls and vote by text.

Lemon is the longtime CNN anchor, who left the network in 2023 and turned up at a St. Paul church this past January with a camera running and as anti-ICE protesters disrupted a Sunday service.

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Their politics, their audiences, and their sensibilities run in opposite directions.

What they share is a charge. Both were charged under 18 U.S.C. § 241, the federal conspiracy-against-rights statute. Mackey was charged in 2021, days into the Biden administration. Last year, the U.S. Court of Appeals for the Second Circuit held that Mackey hadn’t actually conspired with anyone. Lemon was charged this year, by the Trump administration. His charges are still pending, but the government’s burden of proof remains a heavy one.

The common thread for both Mackey and Lemon is that a single word — conspiracy — has proved elastic enough to be stretched toward a meme-maker and a journalist by administrations that agreed on little except the usefulness of the stretching.

We have to be cautious about what we call a conspiracy because expression that’s actually a conspiracy is unprotected by the First Amendment. Lawyers would describe the specific carve-out as “speech integral to criminal conduct.”

For example, in Giboney v. Empire Storage & Ice Co. (1949), the Supreme Court held that the First Amendment offers no shelter to speech “used as an integral part of conduct in violation of a valid criminal statute.” As FIRE’s guide to unprotected speech puts it, a robber’s demand at gunpoint is not protected, and neither is extortion, solicitation of a specific crime, or criminal conspiracy.

So what’s a conspiracy, and what isn’t? Let’s look at the history of Section 241.

The original Klan-buster

Conspiracy against rights became a federal crime because an exasperated country wasn’t sure what else to do.

On Oct. 20, 1870, South Carolina state lawmaker Wade Perrin was tortured and assassinated by a mob in Laurens County, South Carolina. Perrin, a black man and minister, appears to have been targeted in order to suppress black suffrage. He had won re-election the day before. At least seven other Republicans were killed as well. Two days later, the governor sent President Ulysses S. Grant a letter warning that parts of his state had descended into lawlessness.

“Colored men and women have been dragged from their homes at the dead hour of night and most cruelly and brutally scourged, for the sole reason that they dared to exercise their own opinions upon political subjects,” wrote Governor Robert K. Scott. He described the state’s inability to counter the group, explaining, “Our state militia are but imperfectly drilled, and are necessarily employed in their daily avocations as laborers . . . while their opponents are largely composed of those who were engaged in the Confederate Armies, accustomed to the use of fire-arms, thoroughly drilled and armed with the most improved weapons.”

What isn’t clear, but is asserted by some sources, is that the Laurens mob might have been affiliated with the Ku Klux Klan. A congressional investigation said the armed white men in Laurens County were not in disguise and did not hold Klan rallies. But the Klan, founded by Confederate veterans in Pulaski, Tennessee, in 1866, had grown into a paramilitary movement bent on toppling Republican governments and restoring white supremacy — and had already taken hold across most of upstate South Carolina.

This was the environment that created the Enforcement Act of 1870, which had been signed by Grant that May. Its sixth section said if two or more people “band or conspire together, or go in disguise upon the public highway, or upon the premises of another” to “injure, oppress, threaten, or intimidate any citizen” using or trying to use their constitutional or legal rights, then they would be held guilty of felony and fined, imprisoned, or both. Through successive amendments and recodifications, this would eventually become the modern Section 241, and that core language — “injure, oppress, threaten, or intimidate” — survives verbatim.

Whether the Enforcement Act of 1870 worked really depends on what you consider success to look like. The newly formed Department of Justice, led by former Confederate turned civil rights enforcer Amos Akerman, went on a campaign of extraordinary enforcement. In October 1871, Grant suspended habeas corpus in nine South Carolina counties, sent in federal troops, and brought Klansmen to trial. Armed with both the Enforcement Act and the Ku Klux Klan Act of 1871, Akerman’s department secured some 3,000 indictments and hundreds of convictions, often before majority-black juries, and broke the first Klan within a few years.

Not among those convictions were the men accused of murdering Wade Perrin. Six men were ultimately rounded up. None were charged with murder, which was a state crime, and it wasn’t clear at the time a federal court could hear it, as they were charged with (according to a Dec. 16, 1872, newspaper report) “conspiracy to injure, &c., citizens of African descent on account of their suffrage.”

The jury deadlocked. (Two of the men were later re-arrested in 1875 on murder charges, but it’s not clear they were ever tried.)

When the government tried the same statute against the perpetrators of the 1873 Colfax Massacre, in which a white mob killed dozens of black men — by some counts more than a hundred — at a Louisiana courthouse, the Supreme Court threw the convictions out. In United States v. Cruikshank (1876), Chief Justice Morrison Waite reasoned that the rights the defendants had violated constrained only government action, not the conduct of private individuals, so the federal indictment could not stand. The ruling drained the statute of much of its force against private racial violence and helped usher in the retreat of Reconstruction.

In 1873, after Grant’s second inauguration, his administration dropped the pending Klan cases. President Grant pardoned Klansmen already convicted and announced a policy of clemency for those not yet tried. Enforcement Act prosecutions were essentially abandoned after 1874.

The law that would become Section 241 went largely unused for the better part of a century, to be revived in 1966 when the Court sustained the law’s use in United States v. Price, the prosecution arising from the Mississippi murders of the civil rights workers Chaney, Goodman, and Schwerner by a group that included law enforcement officers. The question that likely sank the Perrin prosecution — what constitutes an agreement — was never really specific to the Enforcement Act, which eventually would become Section 241. That’s a problem for every conspiracy charge. The sharpest example comes in the late 1950s.

Even mobsters need an actual agreement

On Nov. 14, 1957, a New York State Police sergeant named Edgar Croswell drove up to a hilltop estate in Apalachin (pronounced app-uh-LAY-kin, not like the mountains), a hamlet near the Pennsylvania border. For some time, Croswell had been watching the property’s owner, a beverage distributor and fine, upstanding pillar of the community named Joseph Barbara, also known as Joe the Barber, a member of the Buffalo crime family. When he drove by on that day, Croswell saw luxury cars with out-of-state license plates. He took down some plate numbers.

What Croswell had stumbled onto was a national summit of organized-crime leaders. Officially speaking, to this day, nobody can authoritatively establish why leading figures from mob territories across the country decided to visit the quiet hamlet of Apalachin. Unofficially, in years since and through much later informant testimony, the likely purpose was that Vito Genovese wanted to cement his own ascendancy and settle the division of the late Albert Anastasia’s operations, after Anastasia suddenly and involuntarily vacated his position as head of what would become the Gambino crime family.

When state troopers set up roadblocks around the estate, the gathering dissolved into farce — men in expensive suits fleeing on foot through the woods — and officers detained roughly 60 mob figures from across the country. Among them was a Pennsylvania underboss named Russell Bufalino. Asked why they had come, the men gave nearly identical answers: they had heard their friend Barbara was unwell and had stopped by to wish him well.

The raid was a watershed. It forced J. Edgar Hoover’s FBI, which had long denied that a national crime syndicate existed, to concede otherwise. But it left prosecutors with a familiar problem. Attending a meeting is not a crime. And because the government didn’t have the benefit of hindsight that we do, it admitted at trial that it could offer no evidence of the gathering’s purpose. So it charged about 20 attendees under the general federal conspiracy statute, 18 U.S.C. § 371, with a different offense — conspiring to obstruct justice and commit perjury — on the theory that because the men had given the same evasive account of their visit, they must have agreed among themselves to conceal it. A jury convicted, and the men drew prison terms of three to five years.

The Second Circuit reversed every conviction. In United States v. Bufalino, the court explained that the similarity of the men’s stories proved nothing about coordination. Each had an obvious and independent reason to be guarded about an afternoon in that company, and the government offered insufficient evidence that they had agreed to lie, versus individually decided to lie.

In the cold light of day, what the government had was a bunch of disreputable people acting evasively when grilled by the cops. That’s parallel conduct, but parallel conduct isn’t conspiracy. Broadly speaking, people who join a secret society are individually adequately motivated not to tell law enforcement about its dealings. No further agreement is required.

The conspiracy that wasn’t

In the fall of 2016, one of the louder pro-Trump voices on Twitter belonged to a man who did not exist. “Ricky Vaughn,” a name borrowed from Charlie Sheen’s wild-pitching character in Major League, was the alias of a Florida man named Douglass Mackey, who by Election Day had a large following and a talent for the provocations that travel fastest online. His posts drew congressional notice the next year in connection with alleged social-media interference in the presidential race.

The posts at the center of his case were three posts or reposts containing deceptive vote-by-text memes. One showed a black woman in front of an “African Americans for Hillary” sign next to an inviting instruction: “Avoid the Line. Vote from Home.”

There is no such way to vote, which was the joke, or the scheme, depending on who described it. At trial, the government said at least 4,900 unique phone numbers texted Hillary Clinton’s name or a variation of it to the number promoted in the images, though it offered no evidence that anyone was actually kept from voting. Mackey had not invented the memes; they were publicly available and widely circulated, pulled from the open internet, and he posted them, he later testified, for attention.

Then, for years, nothing. The memes were public and the controversy was public, and the matter sat untouched through the entire Trump administration. Only in January 2021, more than four years after the memes appeared but only two days after President Biden’s inauguration, did the government charge Mackey with a single count of conspiring to “injure, oppress, threaten, and intimidate” citizens in the exercise of their right to vote.

Federal agents took Mackey into custody at his Florida home on the morning of Jan. 27, 2021. By his account, he was handcuffed and driven to the courthouse before anyone told him the charge. He appeared before a magistrate and was released on bond.

The government’s theory was conspiracy. Mackey, prosecutors said, had joined a loose group of pseudonymous influencers who coordinated in private Twitter message groups to push deceptive material at Clinton supporters. He was tried in Brooklyn in early 2023, and the jury convicted him on the single count, though only after the jury repeatedly told the court it was deadlocked. He was sentenced to seven months in prison, and the Second Circuit let him remain free during his appeal — a signal in itself, since that bond requires a finding that the appeal raises substantial questions.

It raised one the court found decisive. In July 2025, a unanimous panel reversed the conviction and ordered the trial court to enter a judgment of acquittal. The failure was the one the Mafia conspiracy prosecution had named more than 60 years earlier: the government proved that Mackey posted the memes but not that he had agreed with anyone to do so.

And it should have known that.

Mackey had not even been a member of the private message groups during the period when the conspiracy was supposedly formed, and according to the appellate court, the government “failed to offer sufficient evidence that Mackey even viewed — let alone participated in — any of these exchanges.” This was, once again, parallel conduct, not a conspiracy. The case turned on the single word the statute is built around — “conspiracy” — and on the government’s failure to prove it. The Second Circuit never actually reached Mackey’s First Amendment defense.

Squeezing Lemon into a conspiracy

Don Lemon spent 17 years at CNN, where he anchored its prime-time hours before leaving in 2023 for an independent career. On Jan. 18, 2026, a group of protesters entered Cities Church in St. Paul during a Sunday service. Their grievance was specific: they said one of the church’s pastors was an official at the local ICE office.

Lemon was there with a camera, livestreaming. What he was doing there is the heart of the case. The government describes a coordinated takeover of a house of worship; Lemon says he was a journalist covering a newsworthy protest. Lemon’s footage of the event is public and he has maintained throughout that he was working as a reporter.

Prosecutors allege that specific things about Lemon’s coverage indicate his intent to participate in a conspiracy. For example, the indictment notes that during interviews, Lemon would “remind certain co-conspirators to not disclose the target of the operation” and that he “stepped away momentarily so his mic would not accidentally divulge” parts of the planning. At one point he thanked an organizer for her actions and reiterated that he wasn’t disclosing plans for the protest. During his narration, Lemon said the “whole point of it is to disrupt and make people uncomfortable.”

Lemon was charged with conspiracy against the right to exercise religious freedom at a place of worship — Section 241 again — along with a count under the Freedom of Access to Clinic Entrances Act, the 1994 law, usually invoked to protect abortion clinics, that also reaches interference with religious worship (we’re going to focus on the conspiracy charge here). It is unclear whether the government has ever invoked Section 241 to protect First Amendment religious exercise before.

That novelty might explain how hard it was to get the charge in the first place. The Justice Department first sought arrest warrants from a federal magistrate judge in Minnesota, who found no probable cause as to Lemon and his producer even while signing warrants for several of the protesters. Prosecutors then pressed the matter to the district’s chief judge, Patrick J. Schiltz, who declined to grant their request immediately. Schiltz’s written response was pointed: the government had lumped all eight protesters together, asserting things true of some but not all; two of the five it wanted arrested were “not protestors at all” but “a journalist and his producer”; and there was “no evidence that those two engaged in any criminal behavior or conspired to do so.”

The Justice Department sought relief from the Eighth Circuit without success. Only then, having been turned away by every judge asked to examine the evidence, did it take the route that needs no judge’s sign-off: a grand jury indictment, returned Jan. 29. Lemon was arrested the next day. Some career Justice Department prosecutors reportedly declined to take part in charging Lemon and the other journalists, believing the evidence insufficient.

Journalists hold no special license to break generally applicable laws. Once the pastor asked Lemon to leave, he no longer had a right to stay, and the protesters’ decision to commandeer a private house of worship to deliver a political message was not protected expression.

A trespass could be charged as a trespass. But Lemon was not charged with trespassing. He was charged with conspiracy against rights. Unlike the general federal conspiracy statute used in Bufalino, Section 241 requires proof that he conspired to deprive the congregation of its religious freedom, and that charge demands proof of something the others would not: that he knowingly agreed with others to do this thing, and that he or his co-conspirators threatened or physically obstructed congregants.

The question is whether the government has that evidence. What they put in the indictment was: Lemon used the word “we.” He thanked an organizer and said he would not reveal the target on his stream. He narrated the day for his audience and stood closer to the action than a cautious reporter might. The government recasts each of these as an overt act in a criminal agreement. In fact, seven of the 28 enumerated overt acts are First Amendment activities such as word choice, livestreaming, and the editorial discretion of what not to share. But sharing a group’s general purpose is not the same as joining its unlawful one, and the Mackey panel was explicit that the government cannot establish an agreement by pitching a shared purpose at a high level of generality.

Lemon’s opposition to the pastor’s immigration work, which he made no effort to hide, supplies that general purpose. Whether the evidence supplies anything more remains to be seen.

Lemon is closer to the line than Mackey ever was. Mackey was never in the room where the scheme was built. For Mackey’s case to have been a conspiracy, the government would’ve needed to supply evidence of his telepathic ability. Lemon was in the room and spoke in the first person plural once he arrived. But presence and sympathy alone do not a conspiracy make. Based on the publicly available evidence, it is far from clear that Lemon entered into the agreement that the conspiracy charge requires.

There’s a second issue with using 241 in this way: it protects rights secured by the Constitution or U.S. law. The right to freedom of religion runs only against the government. A private citizen who disrupts a worship service does many things, but is not in a position to violate the First Amendment. That’s the same type of line the Supreme Court drew in Cruikshank in 1876.

And this is where Lemon’s FACE Act charge might come into play, in theory. The Freedom of Access to Clinic Entrances ACT, or FACE Act, is a U.S. law that creates a statutory protection that the protest arguably violated. But that isn’t the charge in the indictment, and that would be the novel use of a statute (the FACE Act) to meet a requirement in a novel use of another statute (Section 241), and it’s an awfully long way from the conspiracies that Section 241 was created to punish.

On Aug. 7, Lemon filed a motion to dismiss the indictment for “violating the First Amendment and failing to state an offense.” Separately, he’s moved to dismiss on the grounds that the indictment is rooted in the president’s “long expressed animosity towards Mr. Lemon based on years of critical reporting.”

Same same

In 1871, federal prosecutors used a conspiracy statute against men in disguise who rode at night to keep their neighbors from voting. In 1966, they used it against the murderers of three young men who had come to Mississippi to register voters.

In 2021, they used it against a man who posted a meme. In 2026, against a journalist who filmed a protest.

The two modern defendants would recognize almost nothing in each other, which is why their cases belong side by side. In Mackey’s, the Second Circuit did not ask whether his politics were attractive or his memes defensible. It asked whether the government had proved he agreed to anything, and finding that it had not, ordered him acquitted. The courts weighing Lemon’s case face the same question, and the answer should not depend on the direction his camera happened to point.

A conspiracy statute with an elastic notion of agreement is proving to be a lure that prosecutors can’t resist. The safeguards against abuse are unglamorous: an agreement that must actually be proved, a right that must actually be denied, force that must actually be used. Applied with rigor, those safeguards spared a meme-maker under one administration. A journalist facing prosecution under the next is owed the same rigor, no more and no less, and none of it turning on politics.

The Pentagon has declared war on its press pool. Although it may adopt certain rules about who enters, those rules must comply with the Constitution. And rules that punish journalists for asking questions or publishing information officials would rather keep hidden violate the Constitution at every turn.

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Yet since May 2025, the Department of Defense has done precisely that through its restrictions on the Pentagon press corps. The New York Times has challenged those restrictions in two lawsuits. The Pentagon won a temporary victory in the most recent battle, successfully obtaining a hold on an earlier District Court ruling halting part of its policy, but the war is far from won as the courts continue to consider constitutional challenges to the Pentagon’s current policy.

The Pentagon restricts access

In May 2025, Defense Secretary Pete Hegseth issued a memorandum limiting journalists’ physical access inside the Pentagon. After news organizations reported in June that an early U.S. intelligence assessment found American strikes on Iranian nuclear facilities had caused less damage than President Donald Trump and Hegseth publicly claimed, the department clamped down even harder, limiting reporters’ movement and threatening their credentials if they “solicited” or obtained information officials had not authorized for release — even unclassified information. The Times sued, arguing that the policy violated both the First Amendment and the Fifth Amendment’s guarantee of due process.

“This policy reeks of prior restraint,” the Society of Professional Journalists said in a statement.

If they wanted to keep their credentials, Pentagon reporters had until Oct. 14, 2025, to sign on to the new rules. Instead, more than 30 news organizations — including The New York Times, The Washington Post, CNN, and Fox News, Hegseth’s previous employer — refused. The next day, dozens of journalists surrendered their badges and left the building, ending some news organizations’ decades-long presence there.

A week later, Pentagon spokesman Sean Parnell suggested the changes were also aimed at reshaping coverage, attacking the departing journalists as “self-righteous” activists, and praising their replacements as people who would “circumvent the lies of the mainstream media and get real news to the American people.” The Pentagon then credentialed a new group that included administration-friendly outlets and influencers. Mainstream outlets, including those who walked out, have continued to report on the U.S. military from outside the Pentagon.

The restrictions get blocked

The Times challenged the policy in court and on March 20, Senior U.S. District Judge Paul L. Friedman ruled that the policy violates the First and Fifth Amendments. He agreed with The Times’ assertions that the policy discriminated based on viewpoint, having been implemented with the intent to “chill” news coverage the DoD considers unfavorable.

Friedman cited episodes in the months leading up to the October policy in which Hegseth, Parnell, and other DoD officials responded to negative coverage in the media by attacking the outlets, including calling them “Trump-hating media” and The Times a “Fake News” publication. The court observed that their replacements were specifically “individuals and outlets who had expressed ideological agreement with and support for the Trump administration in the past.”

The DoD had argued that the policy did not discriminate based on viewpoint because it applied to all members of the press corps. However, just because a policy applies to all publications does not mean it is content-neutral if it was adopted “because of disagreement with the message [the restricted speech] conveys.” Ultimately, Friedman enjoined and vacated the challenged portions of the October policy, barred the department from using them against Times journalists, and ordered the Pentagon to re-credential Barnes and other Times journalists.

The Pentagon creates new restrictions

Three days later, the Pentagon issued an interim policy that moved reporters’ workspaces from their traditional location inside the building to an external annex, and required journalists to have an official escort before entering the Pentagon and limiting entry to scheduled interviews, briefings, and other approved events.

The interim policy also replaced the former ban on “soliciting” unauthorized information with a new ban on “intentionally encouraging, inducing, or requesting” an unauthorized employee to disclose it. And violations could still cost a journalist Pentagon credentials.

But that didn’t solve the constitutional problems Friedman noted because reporters gather news by requesting information. A rule that treats those acts as potential credentialing offenses gives officials enormous leverage over the reporting produced about them.

The interim policy also treats a promise of confidentiality as possible evidence that a reporter induced an unauthorized disclosure. But confidentiality is a routine reporting tool, especially when sources fear retaliation for discussing lawful, unclassified, or embarrassing information. Treating it as evidence of misconduct risks punishing protected newsgathering without proof of wrongdoing.

On April 9, Friedman ruled that parts of the interim policy violated his March order and blocked them as applied to Times journalists. The D.C. Circuit later allowed the escort requirement to remain in effect during the appeal, and the Times filed a second suit directly challenging that requirement and other portions of the interim policy.

What it all means

The practical consequences of escort policies that reduce access are substantial. Journalism often begins with an unplanned conversation: a question in a hallway or a clarification after a briefing. An escort’s constant presence makes those exchanges difficult and may deter employees from speaking at all. By relocating the press corps to an outside annex and permitting entry mostly for scheduled events, the rules replace independent reporting with managed access.

The department’s briefing record also illustrates the cost of reduced access. Hegseth went more than eight months between appearances at the Pentagon briefing-room podium, between June 26, 2025, and March 2, 2026. Even during active military operations, formal briefings have been sporadic, making independent access to knowledgeable officials more important. Despite the ongoing war in Iran, the Pentagon has not held a formal press briefing in over two-and-a-half months, citing operational security concerns as the reason.

The Pentagon may impose neutral security rules, protect genuinely classified material, and punish its employees who unlawfully disclose it. What it cannot do is make favorable coverage the price of access or transform ordinary reporting methods into evidence of lawbreaking.

Thankfully, the journalists who surrendered their credentials have continued reporting from outside the building, and their work shows that the Pentagon cannot eliminate scrutiny simply by emptying the press room. But distance, escorts, and managed appearances do make scrutiny harder. That’s a problem for all of us. If the government can control every encounter it has with the press, it can control every detail of what the public gets to know. And that’s no way to protect America’s enduring promise that the government is accountable to the people, not the other way around.