The Volokh Conspiracy
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From Fifth Circuit Judge James Ho's Monday opinion, joined by Judge James Graves, in Villarreal v. City of Laredo (Chief Judge Priscilla Owen dissented and stated she "will file a forthcoming dissenting opinion"):
If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question.
If that is not an obvious violation of the Constitution, it's hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution….
Priscilla Villarreal is a journalist in Laredo, Texas. She regularly reports on local crime, missing persons, community events, traffic, and local government. But Villarreal is not a traditional journalist. Instead of publishing her stories in the newspaper, she posts them on her Facebook page. Instead of using a tape recorder to conduct interviews, she uses her cell phone to live-stream video footage of crime scenes and traffic accidents. Her reporting frequently includes colorful—and often unfiltered—commentary. Perhaps because of this, she is one of Laredo's most popular news sources, with more than 120,000 Facebook followers. See, e.g., Simon Romero, La Gordiloca: The Swearing Muckraker Upending Border Journalism, N.Y. Times (Mar. 10, 2019) ("[Villarreal] is arguably the most influential journalist in Laredo, a border city of 260,000.")…. [But] local law enforcement officials [have been] less than enthused with Villarreal's reporting….
In April 2017, Villarreal published a story about a man who committed suicide. The story identified the man by name and revealed that he was an agent with the U.S. Border Patrol. Villarreal first uncovered this information from talking to a janitor who worked near the scene of the suicide. She then contacted LPD Officer Barbara Goodman, who confirmed the man's identity.
The following month, Villarreal published the last name of a family involved in a fatal car accident in Laredo. She first learned the family's identity from a relative of the family who saw a video that Villarreal had posted. Again, Villarreal contacted Officer Goodman, and again, the officer verified this information.
Six months later, two arrest warrants were issued for Villarreal for violating Texas Penal Code § 39.06(c). According to Villarreal, local officials have never brought a prosecution under § 39.06(c) in the 27-year history of that provision—and Defendants do not contend otherwise.
Section 39.06(c) states that "[a] person commits an offense if, with intent to obtain a benefit …, he solicits or receives from a public servant information that: (1) the public servant has access to by means of his office or employment; and (2) has not been made public." According to the affidavit in support of the arrest warrants, Villarreal solicited or received the names of the suicide victim and the traffic accident victims (which, according to the affidavit, was "nonpublic" information). The affidavit further alleged that Villarreal benefitted from publishing this information before other news outlets, by gaining additional followers on her Facebook page…. [After her arrest,] Villarreal filed a petition for a writ of habeas corpus in the Webb County district court. In March 2018, a judge granted her petition and held that § 39.06(c) was unconstitutionally vague. The government did not appeal….
An official who commits a patently "obvious" violation of the Constitution is not entitled to qualified immunity…. [It is] obvious that Priscilla Villarreal has a constitutional right to ask questions of public officials. Yet according to her complaint, Defendants arrested and sought to prosecute Villarreal for doing precisely that ….
This is not just an obvious constitutional infringement—it's hard to imagine a more textbook violation of the First Amendment…. If freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place…. Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them?
Finally, if the First Amendment safeguards the right to petition the government for a redress of grievances, then it surely safeguards the right to petition the government for information….
So it should be patently obvious to any reasonable police officer that the conduct alleged in the complaint constitutes a blatant violation of Villarreal's constitutional rights. And that should be enough to defeat qualified immunity. The Institute for Justice, a respected national public interest law firm, puts the point well in its amicus brief: There is a big difference between "split-second decisions" by police officers and "premeditated plans to arrest a person for her journalism, especially by local officials who have a history of targeting her because of her journalism." We agree that the facts alleged here present an especially weak basis for invoking qualified immunity. For "[w]hen it comes to the First Amendment, … we are concerned about government chilling the citizen—not the other way around." Cf. Hoggard v. Rhodes (2021) (Thomas, J., respecting denial of cert.) ("But why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?").
Defendants respond that the officials were simply enforcing a statute. But "some statutes are so obviously unconstitutional that we will require officials to second-guess the legislature and refuse to enforce an unconstitutional statute—or face a suit for damages if they don't." … Texas Penal Code § 39.06(c) is one of those statutes….
It should be obvious to any reasonable police officer that locking up a journalist for asking a question violates the First Amendment. Indeed, even Captain Lorenzo, the stubborn police chief in Die Hard 2, acknowledged: "Now personally, I'd like to lock every [expletive] reporter out of the airport. But then they'd just pull that 'freedom of speech' [expletive] on us and the ACLU would be all over us." DIE HARD 2(1990).
Captain Lorenzo understood this. The officers in Laredo should have, too….
The matter strikes me as potentially more complicated than the panel majority concluded: If it's a crime for a government official to release information, then asking him to do so might well be viewed as solicitation of crime, and thus constitutionally unprotected (see pp. 989-997 of this article). Maybe then the government can punish someone for asking a government official to leak the Pentagon Papers or someone's income tax return or sealed documents in a sensational court case. (For a discussion of the similar tortious-inducement-of-breach-of-contract issue when it comes to seeking information from private individuals, see this post.) But perhaps I'm mistaken on this; in any event, the panel majority opinion strikes me as likely to become an important precedent on this question.
The court also concluded Villarreal's selective enforcement claim could go forward:
"[T]o successfully bring a selective … enforcement claim, a plaintiff must prove that the government official's acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right." "[R]etaliation for an attempt to exercise one's religion or right to free speech would be expected to qualify."
"As a prerequisite to such a claim, the plaintiff must prove that similarly situated individuals were treated differently." … Under Defendants' interpretation of § 39.06(c), any journalist who asks a public official a question regarding nonpublic information commits a crime. Villarreal's complaint sufficiently alleges that countless journalists have asked LPD officers all kinds of questions about nonpublic information. Yet they were never arrested.
Specifically, she alleges a similarly situated group that includes: "(a) those who had asked for or received information from local law enforcement officials, and (b) persons who published truthful and publicly-accessible information on a newsworthy matter." She points to "local professional newspaper journalists, local professional broadcast journalists, and citizens who published on matters of local public concern." She further alleges that Defendants "also knew that members of the local media regularly asked for and received information from LPD officials relating to crime scenes and investigations, traffic accidents, and other LPD matters." Finally, Villarreal alleges, and Defendants concede, that LPD had never before arrested any person under § 39.06(c)….
We have no difficulty observing that journalists commonly ask for nonpublic information from public officials, and that Villarreal was therefore entitled to make that same reasonable inference. Yet Defendants chose to arrest Villarreal—and only Villarreal—for violating § 39.06(c). We accordingly conclude that Villarreal has sufficiently pled the existence of similarly situated journalists who were not arrested for violating § 39.06(c)….