Laredo law enforcement officers who arrested a citizen-journalist in 2017 for asking for information deemed nonpublic cannot be sued for violating the First Amendment rights of the reporter because the officers have qualified immunity because they believed they were following a Texas law — even though the law had never been successfully used in a prosecution and has been declared unconstitutional, a hotly divided U.S. Court of Appeals for the Fifth Circuit ruled late Tuesday.
In a 9-7 decision, the en banc court of the Fifth Circuit ruled that police and prosecutors should not be required to know whether a state law is constitutional or not when enforcing laws and thus are immune from the federal civil rights lawsuit brought by popular Laredo citizen-journalist Priscilla Villareal, who accuses the authorities with knowingly bringing unconstitutional criminal charges against her in an effort to intimidate her and limit her rights to free speech. Judge Irma Ramirez chose not to participate in the decision.
But seven Fifth Circuit judges in four different dissents blasted the majority’s decision as an attack on the First Amendment’s right to free speech and freedom of the press. The dissenting judges say the majority turns routine questioning by news reporters into probable cause for committing criminal activity and shows how screwed up the Fifth Circuit is when it comes to granting immunity to government officials who abuse their power.
“The right to speak freely and to inquire is precisely what’s at stake in this case,” Judge James Ho wrote in dissent. “Like every American, Priscilla Villarreal holds views that are shared by some — and disliked by others. But a group of police officers and prosecutors in Laredo weren’t content to simply disagree with her. They had to weaponize the coercive powers of the criminal justice system against her. So they charged her and jailed her for asking a police officer a question.”
“The majority bristles at this short-hand description. But facts are stubborn things,” Judge Ho wrote. “If the First Amendment means anything, surely it means that citizens have the right to question or criticize public officials without fear of imprisonment. The Constitution doesn’t mean much if you can only ask questions approved by the state. Freedom of speech is worthless if you can only express opinions favored by the authorities.”
Multiple First Amendment experts said Tuesday night that the U.S. Supreme Court needs to take up the case.
“I’m very concerned about the consequences for journalists who engage in routine newsgathering — developing and talking to official and unofficial sources in law enforcement and in other government positions,” said Tom Leatherbury, director of the First Amendment Clinic at Southern Methodist University Dedman School of Law and one of the most respected appellate lawyers in Texas.
“The majority opinion also highlights just how broken the judge-made doctrine of qualified immunity is,” Leatherbury said. “I’m heartened by the several dissents and their robust defense of journalists who are just doing their job and serving the public by covering matters of public concern. I’m not sure we’ve seen the last of this case.”
Paul Watler, a media law partner at Jackson Walker, said Judge Ho “got it right” and that “it is unfortunate that a majority of the Fifth Circuit did not agree.”
Most police officers in Texas are dedicated to keeping the public informed, but not all.
“Unfortunately, there are also many among Texas law enforcement who all too often stonewall or inappropriately withhold information from reporters that should be disclosed under Texas law,” he said. “The Villareal opinion may turn into a choke point hindering the free flow of information to the public in Texas. It closes off for journalists commonly accepted means of obtaining information of vital public concern and opens reporters up to the possibility of official retaliation for merely doing their job.”
The case traces its roots to 2017, when Villareal, who writes about police activity on a Facebook page under the name “Lagordiloca,” published information that included the names of two people who had died even though the police had not released their names.
In July, Laredo police received tips that one of their own officers, Barbara Goodman, was leaking information to Villareal, who has 211,000 followers. Laredo authorities obtained a warrant from a Webb County magistrate to obtain the phone records of Goodman, which showed Villareal had sent dozens of text messages seeking information from the officer.
Using the electronic information, the police suspended Goodman from the force for 20 days.
But the Laredo police used the same information to convince a local justice of the peace to issue an arrest warrant for Villareal on charges that she violated Texas Penal Code 39.06, which makes it illegal to solicit information that has not yet been made public with the intent to benefit.
Villareal claims that when she was arrested, Laredo officials surrounded her at the jail, laughed at her and took photos with their cell phones showing their “animus toward Villareal with an intent to humiliate and embarrass her.”
A Texas judge soon granted Villareal’s petition for habeas corpus and held that Section 39.06 was unconstitutionally vague.
In 2019, Villareal sued the Laredo police officers and prosecutors and the city for violating her First, Fourth and Fourteenth amendment rights for wrongful arrest, retaliatory violations of free speech and freedom of the press and selective enforcement in violation of the equal protection clause.
Lawyers for the law enforcement officers said they were merely following the state law when they arrested Villareal and that they would not be expected to know that such a law was unconstitutional.
A federal district judge dismissed her lawsuit, agreeing that the law enforcement officials had qualified immunity.
On appeal, a three-judge panel of the Fifth Circuit reversed, ruling that that you do not need a law degree or even a college education to know that it is illegal to arrest a journalist — or any U.S. citizen — for simply asking questions of governmental officials.
But last year, a majority of judges on the Fifth Circuit decided to revisit the case en banc.
In a 33-page majority opinion, Judge Edith Jones wrote that Laredo authorities should not be held legally responsible for knowing whether such laws are constitutional.
“Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate,” Judge Jones wrote. “She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations.”
“Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly,” Judge Jones wrote. “Villarreal sought to capitalize on others’ tragedies to propel her reputation and career. Villarreal went behind the official information channel and published while the incident was being investigated. She acknowledges that for several years she had published information obtained unofficially.”
“Whether information is nonpublic is determined by the terms of the statute,” Judge Jones wrote.
Judge Jones wrote that in order for Villareal to be successful in court, she must show that the defendants violated a constitutional right that has been “clearly established” and that “a reasonable official would understand that what he is doing violates that right.”
“Villarreal cites no case, nor are we aware of one, where the Supreme Court, or any other court, has held that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit,” Judge Jones wrote for the majority.
Wrong, argue the dissenting judges, who contend that there is legal precedent and it is called the First Amendment to the U.S. Constitution.
“The majority opinion will permit government officials to retaliate against speech while hiding behind cherry-picked state statutes,” Judge James Graves wrote in dissent. “The right to gather and report news could not be more firmly embedded in the Constitution. The text of the First Amendment itself forbids the government from ‘abridging the freedom . . . of the press.’”
“There is simply no way such freedom can meaningfully exist unless journalists are allowed to seek non-public information from the government,” Judge Graves wrote. “Today’s majority opinion overlooks that protection all too cavalierly. But in fact, the right to ‘newsgathering’ has long been protected in American jurisprudence.”
Judge Stephen Higginson quoted Judge Lawrence Silberman of the U.S. Court of Appeals for the D.C. Circuit who wrote that “the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.”
“Priscilla Villarreal alleges that law enforcement officials in Laredo, Texas did precisely this,” Judge Higginson wrote. “They arrested her because her newsgathering and reporting activities annoyed them. To silence her as a critic and gadfly, she claims, they arrested her. Villarreal is entitled to have the district court resolve her plausible allegation that the government officers who arrested her lacked probable cause, and misled the magistrate whose warrants they now claim should insulate them from liability for their unconstitutional actions.”
In his dissent, Judge Don Willett said the majority’s argument that the police officers need qualified immunity in this case because they “need breathing room to make split-second judgments is altogether absent in this case.”
“This was no fast-moving, high-pressure, life-and-death situation,” Judge Willett wrote. “Those who arrested, handcuffed, jailed, mocked and prosecuted Priscilla Villarreal, far from having to make a snap decision or heat-of-the-moment gut call, spent several months plotting Villarreal’s takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute’s near quarter-century of existence.”
“This was not the hot pursuit of a presumed criminal — it was the premeditated pursuit of a confirmed critic,” Judge Willett wrote. “Also, while the majority says the officers could not have ‘predicted’ that their thought-out plan to lock up a citizen-journalist for asking questions would violate the First Amendment — a plan cooked up with legal advice from the Webb County District Attorney’s Office.”
Judge Willett said the majority “simultaneously indulges the notion that Villarreal had zero excuse for not knowing that her actions might implicate an obscure, never-used provision of the Texas Penal Code.”
“In other words, encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees,” he wrote. “In the upside-down world of qualified immunity, everyday citizens are demanded to know the law’s every jot and tittle, but those charged with enforcing the law are only expected to know the “clearly established” ones. Turns out, ignorance of the law is an excuse — for government officials.”
The case is Priscilla Villareal v. City of Laredo, Webb County, No. 20-40359.
(Editor’s Note: A previous version of this article states that the en banc vote was 10-7 instead of 9-7. The Lawbook regrets the error.)