A Texas Reporter Busted for Asking Questions Asks SCOTUS To Reject the Criminalization of Journalism

In 1973, the Texas Legislature made "misuse of official information" a misdemeanor. The law, part of a chapter dealing with "abuse of office," applied to "a public servant" who "acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by" information that "has not been made public" but to which "he has access in his official capacity." The statute also covered "a public servant" who "speculates or aids another to speculate on the basis of the information."

Forty-four years later, police and prosecutors in Laredo deployed an amended and expanded version of that anti-corruption law against Priscilla Villarreal, a local journalist whose freewheeling news coverage and criticism of law enforcement officials had irked them. By asking police questions about a public suicide and a fatal car crash for stories on her locally popular Facebook page, they claimed, she had committed felonies punishable by two to 10 years in prison.

In January, the U.S. Court of Appeals for the 5th Circuit said there was nothing "obviously unconstitutional" about arresting Villarreal for engaging in basic journalism. Now she is asking the U.S. Supreme Court to review that decision, which is blatantly at odds with freedom of speech and freedom of the press.

In a petition that it filed on Villarreal's behalf this week, the Foundation for Individual Rights and Expression (FIRE) urges the justices to uphold well-established First Amendment rights by reviewing the 5th Circuit's ruling. "If they can throw me in jail for asking a question, none of our free speech rights are safe," Villarreal says. "Our First Amendment rights don't depend on our popularity with local politicians. My case is not just about me, but also the rights of every American."

Along with several other journalists, I am participating in a brief supporting Villarreal's appeal. The brief will highlight this case's alarming implications for quotidian journalism. Those implications stem from the abuse of a vague, inartfully worded state law that was aimed at preventing public officials and their cronies from taking financial advantage of inside information.

The 1973 law against "misuse of official information," now Section 39.06 of the Texas Penal Code, was repeatedly amended over the years. Legislators broadened the definition of the offense, reclassified it as a felony, and expanded the law beyond government officials. Under Section 39.06(c), "a person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he solicits or receives from a public servant information" that "has not been made public."

The Texas Penal Code defines "benefit" as "anything reasonably regarded as economic gain or advantage." According to the police affidavits that supposedly justified Villarreal's 2017 arrest, the "benefit" that she sought was a boost in Facebook traffic. According to the 5th Circuit, the "benefit" that Villarreal derived by maintaining "her first-to-report reputation" included ad revenue and "free meals from appreciative readers." This commodious understanding of "economic gain or advantage" is a far cry from the corruption that Section 39.06 was designed to curtail, and it would apply to any journalist who receives any sort of compensation for his work, including salaried employees of news organizations as well independent practitioners like Villarreal.

Section 39.06 defines "information that has not been made public" as "any information to which the public does not generally have access" and that "is prohibited from disclosure" under the Texas Public Information Act (TPIA). Although the arrest affidavits did not address that element, the most likely candidate for a TPIA exception in this context is Section 108(a)(1), which applies to information that might compromise an ongoing investigation—a vague, subjective, and potentially very broad category frequently invoked by law enforcement agencies.

Villarreal initially obtained information about the suicide and the crash from private sources, and she confirmed those leads with Laredo police officer Barbara Goodman. Even if Goodman's superiors thought that information was covered by a TPIA exception, it was not Villarreal's job to anticipate that judgment or restrain herself accordingly. Like any good reporter, she sought to uncover information of public interest by asking for it.

Under the Laredo Police Department's reading of Section 39.06(c), any reporter who "solicits" information deemed to be exempt from disclosure under the TPIA—even if he never receives it, let alone publishes it—is committing a felony. The implications are sweeping. Thousands of times every year, government agencies in Texas invoke Section 108(a)(1) of the TPIA (just one of several possible rationales) as grounds for denying information requests. According to the legal theory underlying Villarreal's arrest, all of those requesters are guilty of felonies.

So are journalists who engage in less formal interactions with government agencies. Every time a police spokesman says he can't answer a reporter's question because doing so might compromise an ongoing investigation, for example, that reporter has violated Section 39.06(c) as the cops who arrested Villarreal interpreted it.

How many of those myriad potential defendants have been arrested for this purported crime? As far as anyone can tell, zero—aside from Villarreal. As dissenting 5th Circuit Judge James C. Ho noted, "no one has been able to identify a single successful prosecution" under Section 39.06(c), "and certainly never against a citizen for asking a government official for basic information of public interest so that she can accurately report to her fellow citizens."

Laredo Police Chief Claudio Treviño and the local district attorney, Isidro R. Alaniz, nevertheless claimed to think Villarreal had committed felonies by asking questions. So did Chief Assistant District Attorney Marisela Jacaman, Laredo police officers Juan Ruiz and Deyanira Villarreal (no relation to Priscilla), and the local magistrate who approved the arrest warrants. A Webb County district court judge showed more sense (or less animus), dismissing the charges after concluding that Section 39.06(c) is unconstitutionally vague.

"When Villarreal turned herself in," according to her Supreme Court petition, "Laredo police officers took cell phone pictures of the reporter in handcuffs while mocking and laughing at her." Even without details like those, the unprecedented nature of the charges against Villarreal reinforced her claim that she was a victim of unconstitutional retaliation.

According to the 5th Circuit, however, police had probable cause to arrest Villarreal, and the law was not so blatantly unconstitutional that they should have recognized it was inconsistent with the First Amendment. The nine judges in the majority therefore ruled that all of the officials Villarreal had sued were entitled to qualified immunity, which bars federal civil rights claims unless they allege violations of "clearly established" law.

That conclusion provoked four dissenting opinions authored or joined by seven judges. It is not hard to see why.

"If the First Amendment means anything," Ho wrote in a dissent joined by five of his colleagues, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment." Yet the majority opinion "opens by claiming that Defendants don't have to comply with the First Amendment at all," saying it is not necessary to consider Section 30.06(c)'s "constitutionality as applied to this citizen-journalist" as long as the arrest was reasonable under the Fourth Amendment.

Judge James E. Graves Jr. likewise complained that "the majority opinion will permit government officials to retaliate against speech while hiding behind cherry-picked state statutes." He said Villarreal's arrest was "obviously unconstitutional" given the "well-established right of journalists to engage in routine newsgathering."

Judge Don Willett noted that the arrest, which resulted from months of investigation, was not the sort of "fast-moving, high-pressure, life-and-death situation" for which qualified immunity is designed. "Just as officers can be liable for enforcing an obviously unconstitutional statute," Willett said, "they can also be liable for enforcing a statute in an obviously unconstitutional way." Otherwise, he said, "government officials can wield facially constitutional statutes as blunt cudgels to silence speech (and to punish speakers) they dislike." He also noted that 42 USC 1983, the law under which Villarreal sued Alaniz et al., "declares that government officials 'shall be liable' for violating the Constitution if they were acting 'under color of any state statute'"—precisely what the defendants did in this case.

"This Court's long-settled precedent leaves no doubt that arresting Villarreal for asking the government for information and publishing the response violated the First Amendment—and every reasonable official would have known that," the petition in Villarreal v. Alaniz says. "Time and again, this Court has upheld the right to publish when government officials shared information only for the government to turn around and try to punish those who gathered and published the information."

In addition to contradicting those precedents, FIRE says, the 5th Circuit's ruling "entitles law enforcement to qualified immunity when they launder obvious First Amendment violations, like the one here, through state statutes. Not only does that decision defy the Constitution and the text of Section 1983, but it also conflicts with rulings in the Sixth, Eighth, and Tenth Circuits. Those circuits framed the question as whether a reasonable official could believe turning plainly protected speech into a crime was constitutional, not whether the official could squeeze the speech into some provision of the penal code. Without reversal, the chill from the decision below will only spread wider, as evergrowing criminal codes provide a grab bag of statutes officials can wield against disfavored speech."