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With Police Actions Recently Targeting Journalists, Will Courts Protect the Rights of the Free Press?

August 16, 2023 Paul C. Watler

Journalism is not a crime. Reporters and editors are not criminals. The First Amendment guarantees it.

This common view of freedom of the press in America appears to have escaped the attention lately of at least one police department in Kansas. And one in Texas, too.

Last Friday, police in Marion, Kansas, seized the computers, file servers and personal cellphones of journalists at the local newspaper, the Marion County Record. According to a search warrant, officers believed there was probable cause that newspaper personnel had used equipment seized by officers to commit identity theft.

But the alleged crime appears to be nothing more than routine newsgathering by journalists checking out a tip about a restaurant owner embroiled in a public controversy. The owner hosted a public forum at her restaurant with a member of congress from Kansas and barred local journalists from attending. A confidential source told the Record that the restaurant owner had a drunk driving conviction but continued to drive without a license, according published reports. A reporter then verified the tipster’s information by simply accessing a state website of relevant public records. The newspaper decided the tip was not newsworthy and did not publish an article about it.  

The publisher of the Record called the newsroom raid “chilling,” and news organizations across the country quickly spoke with one voice to condemn it. “Newsroom searches and seizures are among the most intrusive actions law enforcement can take with respect to the free press,” stated a letter to Marion police by the Reporters Committee for Freedom of the Press. Such actions “suppress free speech by the press and the public,” the RCFP said.

According to reports, the Marion police chief justified law enforcement’s actions by claiming there was reason to believe journalists were “taking part in the underlying wrongdoing.”

In Texas, the Laredo Police Department has fought in federal court for years to defend on similar justifications the 2017 arrest of South Texas journalist Priscilla Villarreal. What was the alleged crime committed by the Laredo journalist? It was merely asking police to confirm the identity of a Border Patrol officer who had died, a query made after Villarreal obtained the information from non-law enforcement sources.

Laredo police charged Villarreal with violating Texas Penal Code section 39.06(c), which makes it a crime for a person “with intent to obtain a benefit” to solicit or receive non-public information from a public servant. In other words, Laredo police contended it was a crime for the journalist to ask a question of a police officer. No journalist has ever been prosecuted under the Texas statute, which has been on the books for more than a quarter century.

Villarreal sued the city of Laredo in the Western District of Texas for violation of her First Amendment rights. She appealed after her complaint was dismissed by the district court. In a majority opinion for a three-judge panel of the Fifth Circuit, Judge James Ho gave a ringing affirmation of the common understanding of the First Amendment. “It is not a crime to be journalist,” Ho wrote. “It should be patently obvious to any reasonable police officer that [arresting a journalist for asking the police questions] constitutes a blatant violation of Villarreal’s constitutional rights.” Ho said.

But what was patently obvious to Judge Ho is now pending before the entire Fifth Circuit, a question wrapped up in the issue of qualified immunity for the Laredo police. The Fifth Circuit granted en banc review and heard oral argument earlier this year.

News organizations and defenders of the First Amendment should keep a watchful eye on Villarreal v. City of Laredo. The Fifth Circuit’s en banc opinion may well impact how the newsroom raid of the Marion County Record plays out. 

In an era when common understandings of the U.S. Constitution are questioned more than ever, the Marion and Laredo cases show — as never before — the vital importance of federal courts in protecting fundamental freedoms guaranteed by the First Amendment.

* * *

Paul C. Watler is a partner in Jackson Walker LLP and recognized for First Amendment litigation in Chambers and Best Lawyers in America. Watler has defended Texas and national newspapers, broadcasters and journalists in numerous libel and First Amendment cases. The opinions are the author’s own.

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