Fort Bend County, Texas, Sheriff Eric Fagan at a news conference in January.
Last year, an Alabama reporter and newspaper publisher were illegally arrested for reporting on a local criminal investigation and then forced to agree not to report on ongoing criminal investigations as a condition of their bail.
It was one of the most egregious press freedom violations of 2023 — a year that was full of them. We hoped that, after all the bad press Atmore authorities received (and the failure of their frivolous prosecution), others would learn their lesson and not try to extort journalists into waiving their constitutional rights.
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And then the sheriff’s department of Fort Bend County, Texas, came along to crush that dream.
Want your illegally seized equipment? Sign this illegal release
Back in December 2021, deputies illegally arrested Texas citizen journalist Justin Pulliam for filming them conducting a mental health check. They also seized his phone and equipment, in clear violation of the Privacy Protection Act of 1980, which prohibits seizures of journalists’ materials except when investigating a crime unrelated to newsgathering.
The charges against Pulliam were dropped in May, but Pulliam told the U.S. Press Freedom Tracker — a project of Freedom of the Press Foundation (FPF) — that the phone and equipment illegally seized from him when he was arrested has yet to be returned. The reason? The authorities, Pulliam says, demanded he sign a waiver releasing them from liability before they would give him back his property.
The law on this is clear — government officials can’t force people to waive their First Amendment rights in order to receive a benefit from the government. And getting your own stuff back after an illegal arrest can hardly even be considered a benefit.
The officers involved shouldn’t be released from liability — they should be released from their jobs.
I wrote about this rule in August for The Hill, focusing on the Securities and Exchange Commission’s unconstitutional “gag rule” whereby the commission forces people it settles cases with to promise not to publicly dispute the allegations against them.
To drive home the dangers of allowing a rule like that to stand, I posed a hypothetical: What if instead of wealthy investment firms, the government went after ordinary citizens? “Want to get out of that traffic ticket without taking off work to go to court? You’ll need to keep quiet about those racial profiling claims.”
The hypothetical was meant to be far-fetched — but apparently it wasn’t. And it’s not the only time the sheriff has violated Pulliam’s constitutional rights.
Citizen journalists are journalists
The government is always resourceful when it comes to limiting its definition of “journalist” to exclude people it doesn’t like.
Officials said Julian Assange wasn’t a journalist because he didn’t redact documents. In Tim Burke’s case, it was because he also worked as a consultant. They’ve even taken the position that documentary filmmakers like Trevor Aaronson occupy some lower tier of journalism with diminished legal rights. Those are just some of many examples.
Add Pulliam to the list. In July 2021 — a few months before his aforementioned arrest — the same sheriff’s department excluded him from a news conference in Richmond, Texas, claiming he was not a member of the media, despite regularly reporting on local government and police on YouTube and Facebook.
Pulliam sued (good for The Institute for Justice for taking the case), and last week a judge ruled in his favor, granting him partial summary judgment and finding that the sheriff — and its departmental policy excluding social media journalists from its definition of “media” — violated his constitutional rights.
The Tracker reported that Magistrate Judge Andrew Edison – whose opinion was adopted by the lead judge on the case — called Pulliam’s journalism “unequivocally” protected by the First Amendment, regardless of his platform.
Long before social media existed, appellate courts said that 'what makes journalism journalism is not its format but its content.'
The judge said the unconstitutionality was obvious enough that officials were not entitled to qualified immunity, which protects government officials from liability when the legal rights they violate are not “clearly established.”
Unfortunately, the denial of qualified immunity is a high bar to reach. An appellate court, for instance, recently held that officers were immune from liability for the unconstitutional arrest of another Texas citizen journalist, Priscilla Villarreal, under an archaic law criminalizing solicitation of information from the government. I previously wrote about the need for the Supreme Court to right that wrong.
To state the obvious, Edison is correct. Long before social media existed, appellate courts said that “what makes journalism journalism is not its format but its content.”
And the House of Representatives endorsed Edison’s reasoning by unanimously passing the PRESS Act — the federal reporter’s shield bill that uses a functional definition of “journalist” to protect from government surveillance anyone who regularly gathers, writes, or reports the news, whether for a Substack blog, The New York Times, or YouTube.
That bill enjoys bipartisan support in the Senate but, as Roll Call recently reported, it’s being held up by outlier objections. (Side note: Tell your senator to support the PRESS Act here.)
A trifecta of First Amendment violations
It’s great news that Edison recognized that qualified immunity should not be a get-out-of-jail-free card for officials who blatantly violate journalists’ rights. But that’s only one of the sheriff’s three strikes when it comes to Pulliam’s First Amendment rights.
Strike two? The December 2021 arrest that was also covered in Pulliam’s lawsuit. The judge did not grant him summary judgment on his retaliation claim, but he can still prevail. The court acknowledged that, as we’ve written, the recent Supreme Court decision in Gonzalez v. Trevino rightly eased the burden of proving First Amendment retaliation. That case wasn’t decided yet when Pulliam briefed his summary judgment motion but he’ll have the chance to raise it at trial.
And the final, third strike: The equipment seizure, which is flagrantly unconstitutional, with or without the Gonzalez case. The attempt to twist Pulliam’s arm into signing away his legal right to sue the sheriff’s department only goes to prove that the department knew what it did was wrong and should have no claim to immunity.
The officers involved shouldn’t be released from liability — they should be released from their jobs. And if Pulliam ever does sign a release, it shouldn’t be for his own equipment. It should be for a fat settlement check.