On Remand, the 5th Circuit Again Blocks a Lawsuit by a Texas Reporter Arrested for Newsgathering

Even if Laredo cops punished Priscilla Villarreal for constitutionally protected speech, the appeals court says, they would be protected by qualified immunity.

Last October, the Supreme Court revived a federal civil rights lawsuit by Laredo, Texas, news vlogger Priscilla Villarreal, who was literally arrested for asking questions—a flagrant violation of the First Amendment. The justices remanded the case to the U.S. Court of Appeals for the 5th Circuit, which yesterday killed the lawsuit again.

Judge Edith Jones, who wrote the 2024 decision that rejected Villarreal's lawsuit the last time around, is also the author of Tuesday's ruling in Villarreal v. Laredo, which begins with a telling mischaracterization. According to Jones, Villarreal claims she suffered "unconstitutional retaliation based on her 'speech' obtained from backchannel police sources in order to benefit herself in violation of Tex. Admin. Code Section 39.06(c)"—a little-known, rarely invoked law aimed at "misuse of official information." That gloss, like Jones' 2024 opinion, obscures the reality that Villarreal was "jailed for basic journalism," as Reason's Billy Binion put it in 2023—a point he elucidated in a compelling 2024 video about her case.

According to Laredo police and District Attorney Isidro Alaniz, Villarreal committed two felonies by asking Officer Barbara Goodman to confirm details about a public suicide and a fatal car accident. Villarreal argued that Alaniz and the cops had it in for her because they disliked her "unfiltered style" of journalism and resented her criticism of local law enforcement. This was the speech for which Villarreal said she had suffered "unconstitutional retaliation" in the form of trumped-up criminal charges. She noted that Alaniz et al. spent months looking for a charge to pin on her before settling on Section 39.06(c). When she turned herself in, "Laredo police officers took cell phone pictures of [her] in handcuffs while mocking and laughing at her."

Jones glides over all of this. She not only puts speech in scare quotes; she erroneously asserts that the relevant speech consisted of the information that Goodman gave Villarreal, which does not make much sense in the context of Villarreal's retaliation claim. And as she did in her 2024 opinion, which dripped with contempt for Villarreal's supposedly unprofessional "journalistic style," Jones implies that Villarreal's reporting was somehow illegitimate because she relied on "backchannel police sources" and hoped to "benefit herself." Given Villarreal's sneaky methods, Jones said last year, it was "inappropriate" to portray her as "a martyr for the sake of journalism."

That view betrays a fundamental ignorance of how journalism works. Reporters across the country routinely seek information from "backchannel" sources, and their newsgathering is indisputably protected by the First Amendment. It does not matter whether they work for the "mainstream, legitimate" news outlets that Jones prefers, whether they are trying to "benefit" themselves (by, say, earning a salary or attracting an audience that might help boost advertising revenue), or even whether they could be said to "capitalize on others' tragedies to propel [their] reputation[s] and career[s]," which is how Jones described Villarreal's reporting in 2024.

That earlier opinion—the one that the Supreme Court vacated—said it was not "obviously unconstitutional" to arrest a reporter for reporting. That conclusion was so astonishing that it provoked four vigorous dissents authored or joined by seven of Jones' colleagues.

"If any principle of constitutional law ought to unite all of us as Americans, it's that the government has no business imprisoning citizens for the views they hold or the questions they ask," Judge James C. Ho wrote. Judge James E. Graves Jr. agreed that Villarreal's arrest was "obviously unconstitutional," noting the "well-established right of journalists to engage in routine newsgathering."

Judge Don Willett argued that the defendants could not plausibly claim they were simply enforcing the law. "Just as officers can be liable for enforcing an obviously unconstitutional statute, they can also be liable for enforcing a statute in an obviously unconstitutional way," he wrote. In fact, Willett noted, the law under which Villarreal sued Alaniz et al., 42 USC 1983, "declares that government officials 'shall be liable' for violating the Constitution if they were acting 'under color of any state statute.'"

Jones does not revisit that issue in Tuesday's opinion, instead focusing on Villarreal's retaliatory arrest claim. She notes that the Supreme Court remanded Villarreal's case for "further consideration in light of" Gonzalez v. Trevino, a 2024 decision in which the Supreme Court made it easier for victims of retaliatory arrests to prove their First Amendment claims. "We infer that the Supreme Court's ruling on First Amendment retaliation in [Gonzalez] means that is the sole claim this en banc court ought to reconsider," Jones writes. But contrary to what you might expect, she says reconsidering that claim does not require assessing its plausibility (or even accurately describing it).

Even if Alaniz and the cops engineered Villarreal's arrest to punish her for constitutionally protected speech, Jones says, "it is easily shown" that they would be protected by qualified immunity, a doctrine that shields government officials from federal civil rights claims unless their alleged misconduct violated "clearly established" law. Jones notes that the arrest happened in 2017, two years before the Supreme Court's ruling in Nieves v. Bartlett, which recognized an exception to the general rule that probable cause for an arrest defeats a retaliation claim.

"An unyielding requirement to show the absence of probable cause could pose 'a risk that some police officers may exploit the arrest power as a means of suppressing speech,'" Chief Justice John Roberts wrote in the majority opinion. He offered jaywalking as an example: "At many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest."

Justice Neil Gorsuch amplified Roberts' point in a partially concurring opinion. "Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something," he wrote. "If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age."

Villarreal's case exemplifies exactly that scenario. Alaniz and the other defendants seized upon Section 39.06(c), a law that local police had never enforced before, to arrest Villarreal for newsgathering. The history of that law, which was aimed at preventing "abuse of office" by punishing the release of confidential information for financial gain, shows that Alaniz et al. were not using it for its "intended purposes," which had nothing to do with journalists covering the news.

As Ho noted last year, "no one has been able to identify a single successful prosecution" under Section 39.06(c), "and certainly never against a citizen for asking a government official for basic information of public interest so that she can accurately report to her fellow citizens." The strained statutory interpretation that was used to justify Villarreal's arrest implied that reporters across Texas commit felonies every day simply by doing their jobs—a point that several journalists (including me) made in a brief supporting Villarreal's Supreme Court petition.

The novel nature of the charges against Villarreal, which a state judge ultimately dismissed after concluding that Section 39.06(c) was unconstitutionally vague, reinforced her argument that they were nothing more than a pretext for revenge. Stephen Higginson, another judge who dissented from last year's decision against Villarreal, noted her allegation that the defendants charged her "despite knowing that [local authorities] had never arrested, detained, or prosecuted any person before under the statute." As he saw it, "this conduct falls squarely within the Nieves exception," since "there could be no better example of a crime never enforced than this one."

None of that matters, Jones says, because Villarreal was arrested before Nieves. "At the time Villarreal submitted herself to the police based on arrest warrants," she writes, "'every reasonable officer' could have believed that what he or she was doing was perfectly legal, or put otherwise, none of the defendants, including the police and
attorneys who drafted the warrant affidavits, 'knowingly violate[d]' Villarreal's constitutional rights."

In a concurring opinion, Judge Andrew Oldham agrees that the defendants qualify for immunity under the relevant case law. But he questions the logic of applying that doctrine beyond the sort of "split-second decision-making" that use-of-force cases typically involve.

"It is increasingly unclear whether the rationale for qualified immunity makes sense in a case like this one," Oldham writes. "I understand the need for qualified immunity when officers are forced to make split-second decisions, often with imperfect information and under potentially deadly or dangerous circumstances. But '[t]hose who arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal…spent several months plotting Villarreal's takedown.' When an officer has the time to make such plans, to consult counsel, and to investigate all the facts, it is unclear whether and to what extent qualified immunity should apply."

The majority "summarily decides that Ms. Villarreal loses again, despite nearly six years of tenacious First Amendment litigation that culminated successfully in the High Court,"  Higginson complains in a dissent joined by four of his colleagues. "Because the parties disagree comprehensively and cogently about the impact of Gonzalez on Ms. Villarreal's reinstated lawsuit, I would remand to the district court to permit full adversarial briefing and argument. Remand is a cautionary approach that avoids a Pyrrhic victory for Ms. Villarreal."

Higginson notes that the 5th Circuit's 2024 decision rejected Villarreal's retaliatory arrest claim based on "our circuit's binding interpretation of the Nieves exception," a reading that the Supreme Court deemed "overly cramped" in Gonzalez. "Whether Ms. Villarreal's retaliation claim nevertheless fails on qualified immunity grounds is a question that our en banc court did not answer," he writes. "Yet today's majority, with minimal briefing on the issue, summarily decides that qualified immunity for the retaliation claim 'is easily shown.'"

Remanding the case also "would allow the district court to consider the points raised in several of the opinions dissenting from our court's prior, now-vacated en banc decision," Higginson notes. "These dissenting opinions elaborated that police arrests of journalist-critics for routine newsgathering obviously violate the First Amendment."

In the 5th Circuit, that is not only a controversial view. It is one that the appeals court has rejected in no uncertain terms, making freedom of the press contingent on the legal creativity of vengeful cops and prosecutors.