We’ve often commented on the alarming increase in frivolous attempts by local prosecutors to criminalize routine acts of journalism. The trend escalated last year, but the 2017 arrest of Laredo, Texas, citizen journalist Priscilla Villarreal was an early harbinger.
Seven years later, lawyers from the Foundation for Individual Rights and Expression (FIRE) are hoping to take her case to the Supreme Court. It’s an opportunity for the justices to make clear to local authorities, from Kansas to Alabama, that they’ll be held accountable when they abuse their authority to retaliate against journalists and attack press freedom.
Villarreal was charged under an obscure Texas law making it a crime to ask government officials for nonpublic information for personal benefit. It does not appear that anyone has ever been successfully prosecuted under the law. Any prosecutor — and we’d hope any American — should recognize that it’s unconstitutional to arrest someone for doing nothing more than requesting information from the government.
A judge dismissed the case against Villarreal in 2018, rightly finding the law she was accused of violating unconstitutional. She sued, but the court determined that city officials were protected by qualified immunity. That legal doctrine shields government officials from lawsuits, even when they violate the Constitution, except when a court finds the illegality of their actions should have been obvious.
A panel of judges from the 5th U.S. Circuit Court of Appeals initially reversed that decision and ruled Villarreal’s lawsuit could proceed. But then the full court reversed again, agreeing that police are entitled to arrest journalists for asking questions with impunity as long as they can dust off some archaic law to justify their actions.
One of seven dissenting judges, James C. Ho, put it well: “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 decision was particularly outrageous because it reasoned that the existence of “official” channels for journalists to get some government information, like public records requests, made it reasonable for police and prosecutors to assume unofficial channels can be outlawed. The First Amendment protects journalists’ right to gather news through any lawful means — not just to file public records requests and hope for the best.
Citing transparency laws as a basis to criminalize newsgathering gets it entirely backward. As another dissenting judge, James E. Graves Jr., put it, “the government’s power to protect certain information,” through exceptions to public records laws, has nothing to do with “a person’s right to ask for it.”
Equally ridiculous was the 5th Circuit’s suggestion that officials had reason to believe Villareal had illegally “benefited” from the information she sought, since her reporting drove traffic to her Facebook posts. The press freedom clause of the First Amendment wouldn’t mean much if it permitted an exception for news outlets that make money.
We hope the Supreme Court accepts review of this case and makes clear that public officials are expected to have a basic understanding of the most fundamental First Amendment principles, like the right of journalists (or anyone) to ask questions.
This isn’t only a Laredo, Texas, problem — last year, police in Calumet City, Illinois, cited a journalist for asking too many questions. And last month, a Tampa fire chief called police on a journalist who requested public records (so much for those official channels).
The court needs to fix this mess, not only for Villarreal’s sake but for the sake of all journalists victimized by local authorities who think they’re above the Constitution.
