Don Lemon's federal case will be before a Minneapolis court on Tuesday morning, and the prosecution's position has weakened materially since this paper last surveyed the case's trajectory. The wrong-person charging error, which Magistrate Judge Hildy Bowbeer called "unacceptable" in a March 21 order, was not an isolated embarrassment. It was a signal about the rigor — or lack of rigor — with which the Department of Justice assembled its case against all nine defendants, including Lemon. [1][2]

The hearing Tuesday will address the motion to dismiss filed by Lemon's defense attorney Abbe Lowell on March 15. The motion rests on two arguments. The first is statutory: the Freedom of Access to Clinic Entrances Act, under which Lemon was charged, was designed to protect access to reproductive health clinics, not to prohibit protest speech at houses of worship. Applying it to a church protest extends the statute beyond its text and its legislative history. The second argument is constitutional: charging a journalist for documenting a protest — even while present alongside protesters — constitutes selective prosecution that chills First Amendment activity. [1][3]

The wrong-person error gave Lowell a third argument he did not need to make before Bowbeer's order but can now make explicitly: that the government's identification process for all defendants was inadequate, and that any conviction resting on the same investigative methods that produced a charge against someone who was not present would be epistemically compromised. [2]

Judge Bowbeer's language in the March 21 order was unusually sharp for a magistrate addressing a federal prosecution. Judges in the district who are familiar with Bowbeer's writing describe the "unacceptable" characterization as a significant marker — magistrate judges are generally careful to avoid language that implies the government behaved improperly, both because it affects the broader case and because federal judges operate in close professional proximity to federal prosecutors. When a magistrate uses the word "unacceptable," she means it. [2]

The DOJ responded to the wrong-person charge by dropping the charge without explanation. It did not address whether the identification methodology applied to the misidentified defendant was also applied to the remaining defendants. That silence is the space Lowell will occupy on Tuesday. [2][3]

Three outcomes remain possible. Complete dismissal — if the judge finds the FACE Act inapplicable and the prosecution selective — would end the case against Lemon and potentially unwind related prosecutions. Partial dismissal — dismissal of charges against some defendants on narrower grounds — would advance the case toward trial with a reduced defendant list. Denial of the motion would set a trial date, likely for late 2026. [1][3]

The case's significance runs past Lemon's individual situation, which is the analysis this paper offered last time the case was examined and which remains accurate. The No Kings movement organized protests at churches, mosques, and synagogues across the country on Saturday. If the FACE Act can be used to prosecute participants in those protests, it becomes a national tool for suppressing the kind of direct action that the movement has adopted as its primary tactic. The DOJ knows this. The defense knows this. Whether the judge is willing to decide the case on its constitutional dimensions — rather than its narrower procedural grounds — will determine how much the ruling matters. [1][2]

Hannah Arendt wrote in "The Origins of Totalitarianism" that the criminalization of politics begins not with legislation but with the creative application of existing law to conduct previously regarded as protected. The FACE Act was not written to criminalize protest at churches. Whether it can be read to cover that conduct is a question Tuesday's hearing may begin to answer. Whether it should be read that way is the question the Constitution requires the court to ask.

-- ANNA WEBER, Berlin