"In a column for National Review, McCarthy reminded readers of a point he has previously made: Assuming there is an indictment, whether now or in the near future, if Lemon is going to have to try to get the case thrown out on a pretrial motion to dismiss; the First Amendment does not protect a journalist from being charged with a crime; it may protect him from being convicted."
"The Justice Department gives the press a wide berth based on regulations and norms that honor the First Amendment's acknowledgment of a free press; there is a reluctance to prosecute or compel the production of information. But the Constitution is not a press shield, argued the former federal prosecutor. If a reporter violates a criminal statute whether or not ostensibly in the course of journalistic reporting the First Amendment does not immunize the reporter from prosecution."
An arrested journalist faces legal limits to First Amendment protections when charged with criminal conduct. The Department of Justice generally grants the press deference through regulations and norms, creating prosecutorial reluctance to charge reporters or compel information. The Constitution, however, does not act as an absolute shield against criminal prosecution. Violating a criminal statute can lead to prosecution regardless of journalistic intent. Demonstrated journalistic activity can influence a court's assessment of ambiguous evidence, making conviction harder absent proof of conspiratorial planning or hands-on forcible actions. Indictment requires a lower evidentiary threshold than conviction, prompting pretrial motions to dismiss as a possible defense.
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