Fifth Circuit: Upon Further Review, Fuck The First Amendment

I’m not a religious man, but Jesus Fucking Christ.

Yet another insane decision that allows the government to ignore constitutional rights has been handed down by the Fifth Circuit Court of Appeals — the one nationally known as the most cop-friendly circuit in the nation.

The long journey to this horrible ending begins in 2018. That’s when Laredo, Texas police officers arrested independent journalist Priscilla Villarreal — known as “Lagordiloca” by fans of Facebook live streams.

Villarreal committed no crime. She simply asked questions about a Border Patrol agent who had committed suicide. Her cop source gave her the name and confirmed the cause of death. If any violation of law occurred, it happened when the journalist’s law enforcement source gave Villarreal this information. Her subsequent publication of this information was not actually a crime, although the Laredo PD felt otherwise.

Villarreal learned there was a warrant out for her arrest, for the supposed crime of illegally soliciting information from a public servant. The “intent to benefit” aspect of the crime (the only thing making this act a crime, btw) was supposedly fulfilled by the fact that Villarreal intended to increase viewership/readership by publishing this information. For the clicks, in other words. That was the assertion made by prosecutors.

Villarreal immediately challenged her arrest and the law used to make it, claiming the law was unconstitutionally vague. The government apparently agreed, because it did not challenge her assertions in court, allowing her to be freed of criminal charges.

She sued the officers who arrested her, alleging both First and Fourth Amendment violations. The first pass by the Fifth Circuit Appeals Court got it exactly right:

If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well.

[…]

If freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place.

[…]

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

[…]

So it should be patently obvious to any reasonable police officer that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights. And that should be enough to defeat qualified immunity.

The Fifth Circuit then reaffirmed its November 2021 decision with a published decision in August 2022. Nothing changed with the majority. The only new addition was a mouthy and incoherent dissent penned by Chief Judge Priscilla Richman. Richman’s history at the court has been… shall we say… controversial.

Richman’s opposition aside, this should have been the end of it. The Fifth Circuit had opined twice, both times pointing out that arresting someone for engaging in acts of journalism was a clear violation of the First Amendment. Villarreal should have been able to continue suing the Laredo PD officers for violating her constitutional rights. But that’s not what happened.

Instead of allowing an obviously correct opinion to set the standard, a few Fifth Circuit judges apparently felt the decision didn’t give cops enough leeway to violate rights without fear of reprisal. One of those was most likely Chief Justice Richman — the judge who forced the appeals court to issue a second opinion solely for the purpose of airing her particular anti-constitutional grievances.

The other judge asking for a rehearing was Judge Edith Jones. Behold her handiwork:

In her opinions, she has questioned the legal reasoning which legalized abortion, advocated streamlining death penalty cases, invalidated a federal ban on possession of machine guns and advocated toughening bankruptcy laws. In 2006, Chief Judge Jones found that a death row inmate who had filed a pro se motion to drop his appeal while his attorney was abroad could not later reinstate his appeal.[7] In June 2017, Jones dissented when the court found that a university did not violate the Due Process Clause or Title IX when it expelled a student for committing a campus sexual assault as well as his girlfriend, who had recorded the assault and shared the video on social media.[8][9] In May 2018, Jones wrote for the court when it found that Texas Senate Bill 4, which prohibits local governments or public employees from criticizing federal immigration enforcement or from praising sanctuary cities, did not violate the First Amendment.[10][11]

Six months later, the new official opinion from the Fifth Circuit has arrived. And the shittiest judges on the court have won. It’s apparently just fine to arrest people for engaging in journalism in this circuit. The Fifth has rolled back its original decision to give the sued Laredo cops a free pass on their obvious constitutional violations. (h/t Short Circuit)

The new ruling [PDF] was written by Judge Edith Jones. Her middle finger to the First Amendment runs 33 pages. It is followed by three dissents, running an additional 47 pages. Judge Jones and her majority compatriots are clearly wrong. But there were just enough judges willing to elevate cops over the people they serve to ensure law enforcement officers in this circuit will feel far more comfortable engaging in retaliation against supposedly protected speech in the future.

Judge Jones makes it clear she simply does not like Priscilla Villarreal or others who might make public information law enforcement wishes to release on its own schedule.

Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source.

The Texas law was clearly meant to fight corruption, preventing people from personally benefiting from still-secret information, such as votes on laws or regulatory changes. It was never meant to punish journalists from publishing still-secret information obtained from government sources. If it was meant to do that, it was clearly unconstitutional. But, of course, Judge Jones doesn’t see it that way:

We do not reach the ultimate question of this facially valid statute’s constitutionality as applied to this citizen-journalist.

“Facially-constitutional,” perhaps. “As applied,” definitely not. But that doesn’t matter to Judge Jones and her like-minded judges. The law is the law, even if it’s being unconstitutionally applied to silence a journalist local law enforcement just doesn’t care for.

This is not a case about a “citizen journalist just asking questions.” That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against the standards of Texas law. Villarreal was arrested on the defendants’ reasonable belief, confirmed by a neutral magistrate, that probable cause existed based on her conduct in violation of a Texas criminal statute that had not been declared unconstitutional. We need not speculate whether section 39.06(c) allegedly violates the First Amendment as applied to citizen journalists who solicit and receive nonpublic information through unofficial channels. No controlling precedent gave the defendants fair notice that their conduct, or this statute, violates the Constitution facially or as applied to Villarreal.

And then the judge goes back to directly criticizing Villarreal’s journalistic methods, as though those were enough to justify setting precedent that ignores a ton of jurisprudence, including that issued by the US Supreme Court.

Scorning to await an official LPD report, and ignoring other TPIA open records procedures, Villarreal secretly solicited information from Officer Goodman to bolster her first-to-report reputation.

Apparently, Judge Jones thinks journalists should never utilize inside sources but rather wait for their public records requests to be denied and/or reprint official statements once they become available.

This is an extremely antagonistic opinion, loaded with language that clearly demonstrates this court has elevated law enforcement officers above the people they serve, and feels journalism is an evil, perhaps not even a necessary one.

Villarreal characterizes her First Amendment claims as invoking her rights “to peaceably ask officials questions and to engage in routine newsgathering and reporting.” These rights, she asserts, are “obvious to every reasonable official.” If probable cause turned on a defendant’s self-serving rationales for her conduct, very little law enforcement could take place. But under existing caselaw, officers are almost always entitled to qualified immunity when enforcing even an unconstitutional law, so long as they have probable cause.

Villarreall’s arguments weren’t “self-serving.” They were based on long-established law that specifically protects journalists, their sources, and their right to publish non-public information they receive from these sources. The only thing self-serving here is the court’s new opinion, which expands the power of law enforcement at the expense of the general public.

The dissents push back hard against the loaded language of the majority opinion:

As Judge Ho notes, the majority is wrong to disparage Villarreal for, as it writes, “capitaliz[ing] on others’ tragedies to propel her reputation and career.” Not only is that characterization of Villarreal’s enterprise unfair—as the majority writes, her journalistic endeavor survives off the solicitude of fans and “occasional” advertising, id. at 3—but it insinuates that Villarreal’s First Amendment rights are somehow diminished because she makes a modest living while exercising them.

[…]

There is simply no way such freedom can meaningfully exist unless journalists are allowed to seek non-public information from the government. Today’s majority opinion overlooks that protection all too cavalierly.

Obtaining non-public information from non-public sources is an undeniable public good.

Americans only learned about the horrific My Lai Massacre, during the Vietnam War, because a journalist asked a backchannel Pentagon source about it. Many years later, that same journalist reported details of prisoner abuse at the Abu Ghraib prison after gleaning them from a non-public military report.

The majority would apparently prefer the government to have the power to control the narrative at all times.

[T]he majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share. That outcome is unfortunate, unfair, and unconstitutional. It is unfortunate because a democracy functions properly only when the citizenry is informed. It is unfair because it restricts the journalistic freedom to gather information. And it is unconstitutional, for “[a] free press cannot be made to rely solely upon the sufferance of
government to supply it with information.” Smith, 443 U.S. at 104. Indeed, it is not even clear whether the majority’s opinion would allow journalists to request information in good faith from official channels without fear of reprisal.

Obviously this is problematic. But that’s what the majority in this circuit prefers: the subjugation of the public to its government betters. And if cops need to cherry-pick laws to keep the public in line, so be it.