A journalist asked the police a few questions and was arrested by that same agency for publishing the answers.
That this happened not in China or Russia but in the U.S. may raise some eyebrows. Yet that's the conduct a federal court greenlit last week when it ruled that law enforcement in Laredo, Texas, did not obviously violate the Constitution when officers allegedly misled a magistrate judge and arrested Priscilla Villarreal for doing basic reporting, adding another twist to a case that in some sense asks the following: Exactly who is a journalist?
In April 2017, Villarreal reported the identity of a Border Patrol agent who killed himself by jumping off of a local overpass. A few weeks later, she published the last name of a family involved in a fatal traffic accident. She confirmed both of those identities with an officer in the Laredo Police Department (LPD). In response, that department set in motion a criminal investigation—complete with subpoenas for various people's cellphone records—that saw Villarreal arrested months later for violating an obscure Texas law, § 39.06(c), that prohibits soliciting "nonpublic information" if done "with intent to obtain a benefit."
The supposed benefit, the government said, was followers on her Facebook page.
Villarreal's Facebook is indeed central to her story. She is known almost ubiquitously in Laredo, where she gained popularity by livestreaming local crime scenes and traffic accidents, infusing her videos with provocative, and often-profane, commentary. Some of that reporting has been critical of law enforcement, attracting their ire and culminating, she says, in their attempt to shut her up via the criminal justice system.
It didn't work. But it did kick off a multiyear debate over whether or not her arrest violated the Constitution, and, if so, if those officers should be shielded by qualified immunity, the legal doctrine that prevents alleged victims of abuse from bringing civil suits against state and local government actors if the way in which those employees violated the law has not yet been spelled out precisely in a prior court ruling.
After years of a legal back-and-forth, Villarreal got her answer last week from the U.S. Court of Appeals for the 5th Circuit: It was not clear that officers had violated the Constitution when they charged her criminally for her journalism, the majority ruled 9-7. But the decision, which was challenged forcefully by several dissenting judges, raises further questions about what qualifies as journalism and if those who adhere to a more traditional approach are entitled to a different set of rights.
"Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate," wrote Judge Edith Jones. "Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly."
According to Jones and the majority, a reasonable officer could not be expected to know that it is unconstitutional to bring charges against someone for asking the government questions. That obscure Texas law, Jones said, understandably supplied law enforcement with the notion that Villarreal was indeed a criminal, despite that the statute appears to have been written to discourage corruption in government, not boilerplate journalism.
The way Villarreal communicates information, however, is anything but boilerplate. She is not employed by a publication, and her livestreams are raw and unfiltered. That general spirit is summed up well in what she named her page: Lagordiloca, or "the crazy, fat lady."
In that vein, the 5th Circuit's decision is dripping with contempt for Villarreal's enterprise; Jones makes little attempt to hide it. Lagordiloca's rough-around-the-edges, muckraker approach can certainly be jarring. But one wonders if the court would have ruled the same way if Villarreal had been employed by, say, the Laredo Morning Times, where her alleged "benefit" for seeking information would arguably be more significant: a salary. It is also unclear if the police would have had the gumption to arrest her had she fit a more conventional mold.
At least in terms of the latter, Villarreal's contention is "no." The officers leveraged the law illegally, she maintains, to retaliate against her. Buttressing that theory is the fact that no one had ever before been prosecuted under the law Villarreal was charged with breaking.
"Those who arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far from having to make a snap decision or heat-of-the-moment gut call, spent several months plotting Villarreal's takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute's near- quarter-century of existence," wrote Judge Don Willett in dissent. "This was not the hot pursuit of a presumed criminal; it was the premeditated pursuit of a confirmed critic."
Core to the majority's error in judgment, Willett wrote, is a double standard that holds the most powerful people to the lowest standard and the least powerful to the highest. "While the majority says the officers could not have 'predicted' that their thought-out plan to lock up a citizen-journalist for asking questions would violate the First Amendment—a plan cooked up with legal advice from the Webb County District Attorney's Office, mind you—the majority simultaneously indulges the notion that Villarreal had zero excuse for not knowing that her actions might implicate an obscure, never-used provision of the Texas Penal Code," he wrote. "In other words, encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees."
The alleged obviousness of the constitutional violation here—punishing someone for their speech—drives much of the dissents. In 2020, the Supreme Court reversed a ruling that awarded qualified immunity to a group of prison guards who locked an inmate, Trent Taylor, in two cells at the John T. Montford Psychiatric Facility Unit: one that was allegedly filled with "massive" amounts of human feces and the other with sewage from a clogged floor drain. The original ruling immunizing those officers had been too exacting, the high court said, when evaluating if it was clearly established that government employees should know such treatment violates a person's right to be free from cruel and unusual punishment.
The federal court that originally handed down that myopic ruling: the U.S. Court of Appeals for the 5th Circuit.
The court's latest ruling in Villarreal's case "magnifies the troubling trend of police and prosecutors abusing their power to silence speech and punish speakers they dislike," says J.T. Morris, an attorney at the Foundation for Individual Rights and Expression, who represents Villarreal. "The majority decision spurns [a] core First Amendment protection, allowing public officials to evade accountability when they jail Americans who say something the government disapproves of."
Interestingly, there's been a counterintuitive relationship between Villarreal's polarizing approach and the supporters she's united during her protracted litigation in the 5th Circuit. Among those who urged the court to rule in her favor: Alliance Defending Freedom, the conservative Christian legal advocacy group most known for defending religious liberty; the libertarian Cato Institute; the left-leaning Constitutional Accountability Center; and the far-right Project Veritas. It would be difficult to pinpoint very many topics that bring these groups together. That is, after all, the spirit behind the First Amendment: You can disagree with someone's message but still support their right to say it.
"If the First Amendment means anything, surely it means that citizens have the right to question or criticize public officials without fear of imprisonment," wrote Judge James Ho, who previously ruled in favor of Villarreal, in dissent. "It would make no sense for the First Amendment to protect the right to speak, but not to ask questions—or the right to petition the government for a redress of grievances, but not for information."
No matter how you feel about Villarreal and her project, however, it's undeniable that law enforcement's actions, while intending to silence her, expanded her platform. When reached for comment, her response was instructive.
"This is not a loss," she told me. "I said it several times. I want to go all the way to the Supreme Court!"
The post She Was Arrested for Her Journalism. A Federal Court Says She Can't Sue. appeared first on Reason.com.
