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“If the First Amendment means anything,” Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit wrote in a 2022 opinion, “it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.” Common sense, right? But in a remarkable move, the full Fifth Circuit overturned that decision last week — concluding by a vote of 9-7 that reasonable law enforcement officials could have thought they were entitled to detain a reporter for asking a government source for information. The disastrous ruling is a reminder that, as the Reporters Committee has often argued, qualified immunity continues to threaten journalists’ ability to gather and report the news without fear of official retaliation.
The case, Villarreal v. City of Laredo, arose out of Priscilla Villarreal’s coverage of a traffic accident and the suicide of a U.S. Border Patrol employee in Laredo, Texas. In each case, Villarreal alleges, she corroborated the name of the individual involved — which she had obtained independently — with a source in the Laredo Police Department. But in response to her reporting, she was detained and charged with violating a Texas law that makes it a crime to solicit nonpublic information from a public servant “with intent to obtain a benefit.” Villarreal was released on bail and a Texas court, in response to her petition for a writ of habeas corpus, found the statute unconstitutionally vague. She then sued the city of Laredo and officers involved for the violation of her constitutional rights.
At first, Villarreal’s case found favor with a panel of the Fifth Circuit, which thought it “obvious to any reasonable police officer that locking up a journalist for asking a question violates the First Amendment.” Of course, for just that reason, cases involving that fact pattern are rare to non-existent. Still, Judge Ho explained, the rule should have been clear enough from first principles: “If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them?” But in an ominous development, the full Fifth Circuit then voted to hear the case en banc. (The Reporters Committee joined a friend-of-the-court brief at that stage, urging the court to preserve the original result.)
Judge Edith Jones, writing for nine of the court’s sixteen judges, reversed the panel and granted the officers immunity. No court, she wrote, had held that the statute would be unconstitutional as applied to Villarreal before the officers decided to pursue her, and no binding authority addressed journalists’ right to ask for information rather than to publish it. That was enough, in her view, to conclude that a reasonable officer could have thought Villarreal’s arrest was lawful. Salting the wound, the court declined to address whether Villarreal did, in fact, have a First Amendment right to ask questions — leaving future journalists in the same dangerous limbo.
It’s some consolation that the decision drew no fewer than four vigorous dissenting opinions. Judge James Graves, Jr. warned that the decision would have “profound practical implications,” citing the importance of the enormous volume of investigative reporting that relies on sources not authorized to speak to the media. Judge Stephen Higginson emphasized that the majority had skipped over a mountain of plausible allegations that the arrest was transparently retaliatory — that the officers responsible “knew, but did not disclose to the court they approached for the authority to arrest Villarreal, that she had sought no benefit from her sourcing.” Judge Don Willett urged that it was misguided to grant the officers qualified immunity — a doctrine intended to afford law enforcement breathing room for split-second decisions — for “the premeditated pursuit of a confirmed critic.” And Judge Ho, in a lengthy defense of his original opinion, underlined that “[t]he Constitution doesn’t mean much if you can only ask questions approved by the state.”
None of those forceful opinions, unfortunately, is the law of the Fifth Circuit at the moment. And unless Villarreal seeks and obtains further review in the U.S. Supreme Court, the majority’s decision will continue to cast a shadow over investigative newsgathering in the state of Texas.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.