Did Texas Really Jail A Journalist For Asking Questions? Pretty Much.

Earlier this week, I came across a headline that caught my attention. “She Was Jailed for Basic Journalism,” it said. “A Federal Court Isn’t Sure if That’s Unconstitutional.” As it turns out, this article is one of several by Billy Binion, an Associate Editor for Reason, on the prosecution of Priscilla Villarreal, a citizen journalist in Laredo, Texas. According to Binion’s article, police arrested and prosecutors charged Villarreal “for the crime of asking the government questions, getting answers, and publishing those responses” on Lagordiloca News LaredoTx, the Facebook page she uses for her unfiltered reporting. Arresting and charging her for “asking the government questions, getting answers, and publishing those responses,” Binion explains, seems like “a fairly cut-and-dry infringement on her First Amendment rights.”

As I’ve told you before (like in this introduction article to my series on Christopher Dunn), I’m naturally skeptical when I see headlines like this. Of course I’m familiar with stories like this one where police officers yelled at witnesses recording them while they were attacking someone during an arrest. And I’m also familiar with stories like this one police officers and prosecutors have repeatedly arrested and charged him with numerous crimes after he recorded them the first time they arrested him. So, it’s certainly plausible that police might try to intimidate, harass, arrest or even jail someone like Villarreal who publicly criticizes them. But it’s hard for me to imagine that retaliation could go further than that, getting past prosecutors, judges and other safeguards in our criminal justice system.

That leads me to the question at the center of this article: Did Texas really jail a journalist for asking questions?

Texas officials arrested Villarreal and charged her with violating Texas Penal Code § 39.06(c).

“Priscilla Villarreal is a journalist in Laredo, Texas.” “But Villarreal is not a traditional journalist. Instead of publishing her stories in the newspaper, she posts them on her Facebook page.” “Her reporting frequently includes colorful—and often unfiltered—commentary.” Specifically, “Villarreal is not shy about criticizing law enforcement.” And, “[n]ot surprisingly, local law enforcement officials [are] less than enthused with Villareal’s reporting.” In April 2017, that less-than-enthused perspective from law enforcement turned into action. After Villarreal asked Laredo Police Department Officer Barbara Goodman to confirm the identity of someone who committed suicide and someone involved in a fatal car accident, police obtained “two arrest warrants … for Villarreal for violating Texas Penal Code § 39.06(c).”

Texas Penal Code § 39.06(c) states that “[a] person commits an offense if, with intent to obtain a benefit … he solicits or receives from a public servant information that: (1) the public servant has access to by means of his office or employment; and (2) has not been made public.” So, police and prosecutors alleged, when Villarreal asked Goodman to confirm two identities that officials didn’t make public, she committed a crime. Villarreal turned herself in, and the Laredo Police Department celebrated getting a journalist off the streets: “During the booking process, Villarreal saw LPD officers taking pictures of her in handcuffs with their cell phones. The officers mocked and laughed at her.” Officials then detained “Villarreal … at the Webb County Jail.”

Villarreal wanted to hold the officers accountable, but a federal judge in Texas dismissed the case.

A Texas judge eventually dismissed the charges against Villarreal, holding that Texas Penal Code § 39.06(c) was unconstitutionally vague. But Villarreal also wanted to hold the celebrating Laredo Police Department and its officers accountable for their obvious violations of, at a minimum, the First Amendment. and Fourth Amendment. But U.S. District Court Magistrate Judge John A. Kazen, a federal judge in Texas, dismissed the lawsuit: “Although the Court recognizes the profound importance of the rights guaranteed to citizens, such as Plaintiff in this case, the Court has ultimately determined that Plaintiff has not been able to overcome the claims of qualified immunity and other arguments raised by Defendants’ Motions.”

In doing so, Judge Kazen recognized that the case presented a balancing test between Americans’ constitutional rights and government power: “This case involves the balance between Plaintiff’s First Amendment rights as a citizen journalist and the legal protections afforded to law enforcement officials for the decisions they make in their official capacities.” According to Judge Kazen, government power won that balancing test. Among other things, Judge Kazen’s decision relied on his conclusion that it was “plausible” to believe that Texas law enforcement had never arrested or charged anyone with violating Texas Penal Code § 39.06(c) before Villarreal because no one had asked a government official for non-public information before.

“If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question….”

Villarreal appealed to the U.S. Court of Appeals for the Fifth Circuit, which — perhaps unsurprisingly — reversed. “If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question,” the Fifth Circuit began. “If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.” Therefore, the Court ruled, Judge Kazen “erred in dismissing Villarreal’s First and Fourth Amendment claims on qualified immunity grounds” and “also erred in dismissing her Fourteenth Amendment claim for failure to state a claim.”

Ultimately, the Fifth Circuit’s opinion makes it clear that this should have been an obvious decision:

• “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 the 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.”
• “Finally, if the First Amendment safeguards the right to petition the government for a redress of grievances, then it surely safeguards the right to petition the government for information.”

“So,” the Fifth Circuit concluded, “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.”

Villareal’s case isn’t close to over yet, and there’s a decent chance that the police still win.

Even though the Fifth Circuit ruled in Villarreal’s favor, she’s not out of the woods. As Binion’s article in Reason explains, a majority of the 16 judges on the Fifth Circuit agreed to hear the case en banc. The term “en banc” is French for “on the bench.” In laymen’s terms, it means all the judges on a particular court will decide a case rather than, in many cases, the three-judge panel assigned to it at the appellate level. And, as Binion predicts, agreeing to hear something en banc usually means a majority of judges on the court have a problem with it. And, as we saw with Brendan Dassey’s case that captured headlines after the Making a Murderer docuseries on Netflix, federal appellate courts aren’t afraid to use en banc review when they want to — even in high-profile cases like this one.

It’s worth emphasizing that an en banc order affirming Judge Kazen’s decision wouldn’t make Texas Penal Code § 39.06(c) constitutional. But, in a practical sense, the constitutionality of Texas Penal Code § 39.06(c) won’t really matter once we have an en banc order affirming Judge Kazen’s decision. Sure, those charged with violating the unconstitutional law like Villarreal can fight the charges and, hopefully, convince a judge to dismiss them. Yet that won’t stop police from arresting you, charging you and detaining you in the meantime. And, with the judge-invented doctrine of qualified immunity in their back pocket at all times, police officers who arrest people like Villarreal for simply asking questions will rarely (if ever) face any accountability.

This isn’t some biased “defund the police” article. I’m literally copying and pasting Judge James Ho.

I wouldn’t blame you if you thought I was some biased “defund the police” activist who wrote this in a slanted way to trick you. But I’m not. As you probably noticed, there are quotation marks all over this article. That’s because I’m copying most of it word for word from Judge James Ho’s majority opinion in the case for the U.S. Court of Appeals for the Fifth Circuit (or from Judge Kazen’s original decision). And trust me: Judge Ho isn’t some radical advocate for criminal justice reform. Judge Ho is a reliably conservative member of the Federalist Society. When President Donald Trump nominated him to the Fifth Circuit, The Leadership Conference on Civil and Human Rights aggressively warned against him.

But, politics aside, Judge Ho made it clear from the start of his majority opinion that this case wasn’t about politics; it was about your constitutional rights. “If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question,” he wrote. “If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”

So, did Texas really jail a journalist for asking questions? Pretty much. Will the officials who arrested and charged her for asking questions face accountability? Right now, the answer to that question is maybe. But it was just one vote away from being no in the Fifth Circuit. And it might end up being no anyway.