The U.S. Court of Appeals for the Fifth Circuit displayed a deep divide on a First Amendment issue, with the majority ruling journalists cannot circumvent official government channels when investigating government activity.
The court, hearing an appeal en banc after two Fifth Circuit panels had decided otherwise in 2021 and 2022, turned around and affirmed a district court’s judgment granting City of Laredo police officers qualified immunity.
The majority decision was accompanied by four separate dissents in which six circuit judges participated in three and seven participated in one. The dissenting opinions exposed a divide between circuit judges with a bias that favors government secrecy over the public’s right to question government officers.
Circuit Judge Edith E. Jones wrote the majority opinion, which was joined by Chief Judge Priscilla Richman and Circuit Judges Jerry E. Smith, Carl E. Stewart, Leslie H. Southwick, Catharina Haynes, Stuart Kyle Duncan, Kurt D. Engelhardt and Cory T. Wilson.
The four dissents were written by Circuit Judges James E. Graves Jr., Stephen Higginson, Don R. Willett, and James C. Ho. Every dissent was joined by the dissenting authors and by Circuit Judges Jennifer Walker Elrod and Dana Douglas. Circuit Judge Andrew S. Oldham also joined the Higginson dissent.
The plaintiff, Priscilla Villarreal, is a citizen journalist that has for years reported news to a large local audience through her Facebook page. A warrant for her arrest was issued and she was arrested for using a backchannel police department source to confirm the identities of a U.S. Border Patrol officer who committed suicide, and the identity of a person killed in a traffic accident.
Villarreal argued the police and the Webb County district attorney unconstitutionally made the arrest by using a Texas criminal anti bid-rigging statute that had never been used to arrest citizens for simply asking questions.
In justifying the reversal, Jones arguing for the majority said Villarreal could have challenged the law before reporting nonpublic information. Jones said Villarreal revealed information that could have severely emotionally harmed the families of decedent and interfered with ongoing investigations.
Discussing Villarreal’s Fourth Amendment wrongful arrest claim, Jones concluded the defendant officers arrested her on the “reasonable belief, confirmed by a neutral magistrate, that probably cause existed based on her conduct in violation of a Texas criminal statute that had not been declared unconstitutional.”
In addition, the Texas Public Information Act provides exceptions by law as to which government records may be available, and the Texas Attorney General stated “surviving family members can have a privacy interest in information relating to their deceased relatives.”
The Texas anti bid-rigging law requires that the offender must have received a “benefit” from the information obtained, but Jones noted Texas law defines “benefit” broadly as anything reasonably regarded as economic gain or advantage.
J.T. Morris of Foundation for Individual Rights and Expression argued for Villarreal.
“FIRE is disappointed in the ruling, but heartened by the four strong dissenting opinions,” Morris said. “We are determined to seek review from the Supreme Court on this case critical for free expression and constitutional accountability.”
William McKamie of Taylor, Olson, Adkins, Sralla & Elam argued the case for the City of Laredo.
“The majority opinion basically is a statement of existing law. It’s essentially the same type of reasoning the district court used in that opinion. I personally don’t believe the Supreme Court will grant cert review, based on the facts of the case,” McKamie said.
Willett, a former Texas Supreme Court justice, noted a frequently invoked defense by law enforcement is the need for “breathing room” to make “split-second judgements,” but in this case the officers spent months “plotting Villarreal’s takedown” before she was arrested, mocked and prosecuted, and this was accomplished by “dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute’s near quarter-century of existence.”
“It was the premeditated pursuit of a confirmed critic,” Willett said.
The majority opinion rests on the principle the officers reasonably presumed the statute was constitutional, but did not account for the real-world certainty that government officials can wield facially constitutional statutes as “blunt cudgels to silence speech, and to punish speakers, they dislike,” Willett said.
This case illustrates the one-sidedness of the modern immunity regime—federal law declares government officials shall be liable for violating the Constitution if they act under color of any state statute, but the majority’s view is officers can evade federal law because they were acting pursuant to a state statute, he wrote.
“Counter-textual immunity is a one-way ratchet, and regrettably, today’s decision inflicts yet another wrong turn,” Willett said.
Higginson’s dissent argued the majority failed to respect a procedural norm by ignoring her “plausible allegation” the police mislead the magistrate to get the arrest warrant and therefore lacked probably cause.
At the dismissal stage, before the Fifth Circuit confers immunity on the officers, a complaint that the court was misled must be heard, Higginson said, “Otherwise, the ‘independent intermediary doctrine’ would overprotect police misconduct, and even reward it.”
Graves wrote separately to emphasize the importance of gathering and reporting news.
“There is simply no way such freedom can meaningfully exist unless journalists are allowed to seek nonpublic information from the government. Today’s majority opinion overlooks that protection all too cavalierly,” Graves said.
When this case was before the second three-judge panel in 2022, Chief Judge Richman wrote a dissent that spurred Circuit Judge Ho to write a response accusing her of courting authoritarianism.
Ho again wrote, this time in dissent to say, “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.”
Ho disagreed with the majority claim that sensitive information about a pending criminal investigation should have been shielded from disclosure.
“That’s wrong for several reasons, the most simple of which is this: Subsection (c) of that provision requires the release of ‘basic information about an arrested person, an arrest, or a crime.’ It’s hard to imagine anything more ‘basic’ than a person’s name,” Ho said.
Villarreal’s case drew a diverse amicus coalition to her cause. Organizations participating in friend of the court briefs included Foundation for Individual Rights and Expression, Alliance Defending Freedom, Americans for Prosperity Foundation, the Cato Institute, the Constitutional Accountability Center, the Electronic Freedom Foundation, the First Liberty Institute, the Institute for Justice, and Project Veritas.