The government cannot jail journalists for asking a question. But local Texas officials did just that, arresting citizen journalist Priscilla Villarreal for exercising her core First Amendment right to ask government officials for information as part of her reporting.
The officials professed reliance on a cobwebbed, never-enforced criminal statute against requesting non-public information from a government official in order to “obtain a benefit,” claiming Priscilla intended to use the information to gain more attention for her reporting.
Priscilla sued for violation of her First and Fourth Amendment rights, but the district court dismissed her claims, concluding that the officials were entitled to qualified immunity. Qualified immunity is a legal doctrine protecting public officials from liability in civil rights lawsuits unless the officials violated a “clearly established” constitutional right.
A majority of the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed and denied qualified immunity, holding that Priscilla had a clearly established right to investigate and report the news. However, the Fifth Circuit affirmed the district court’s dismissal of Priscilla’s First Amendment retaliation claim, relying on a unique Fifth Circuit rule requiring a plaintiff to curtail their First Amendment expression in response to the government’s retaliation in order to preserve a claim. Defendants requested “en banc” review, asking the entire Fifth Circuit to consider the case. The Fifth Circuit granted their request.
This week, a diverse coalition of organizations submitted amicus curiae — “friend of the court” — briefs in support of Priscilla’s First Amendment right to investigate and report the news.
Media organizations — including The Texas Press Association, Texas Association of Broadcasters, Freedom of Information Foundation of Texas, Reporters Committee for Freedom of the Press, the Texas Tribune, the Dallas Morning News, the National Association of Hispanic Journalists, and the Society of Professional Journalists — submitted an amicus brief supporting Priscilla through Jackson Walker, LLP, highlighting their concern “for the ability to gather information from public employees without fear of retaliatory arrest and prosecution.” The brief aptly points out that “the troubling facts of this case and the district court’s alarming application of qualified immunity to them call the legality of basic journalism into question.” They add that “the long-standing experiment in American democracy is premised on the right to both participate in, and critique, the government.”
The Electronic Frontier Foundation, National Press Photographers Association, and Pelican Institute for Public Policy submitted an amicus brief with the assistance of Covington & Burling, LLP. Their brief highlights the importance of damages awards in civil rights suits as a deterrence on government crackdowns on independent journalists, noting that the “First Amendment requires state officials to stand by in the face of speech that ‘may well include vehement, caustic, and sometimes pleasantly sharp attacks’” without retaliating against the author.
The Institute for Justice submitted an amicus brief supporting Priscilla, stressing the need to “properly delineate and cabin qualified immunity’s scope.” IJ argued that “granting immunity here would not only reward the knowing punishment of speech and journalism, but also countenance government control of speech and information.” IJ added that a ruling against Priscilla would “tell officials of all stripes that they can weaponize bloated criminal codes to target and upend the lives of disfavored persons, groups, or views.”
James O’Keefe and Project Veritas submitted an amicus brief with the assistance of counsel from the First Liberty Institute, citing their mission to support “undercover journalism that holds the powerful accountable for what they attempt to conceal from the public.” Their brief urges the Fifth Circuit to “recognize that it is an obvious violation of the First Amendment to arrest a journalist (or a parent, a student, or any other citizen) simply for asking government officials a question to uncover the truth.” The group added that, by electing Thomas Jefferson in the 1800 presidential election, who ceased Sedition Act prosecutions, Americans “decisively rejected the notion that the First Amendment can countenance the arrest and imprisonment of journalists for publishing criticism of their public leaders.”
The Constitutional Accountability Center submitted an amicus brief focusing on the history of Section 1983, the statute providing members of the public a cause of action against state officials for violations of constitutional rights. CAC argues Congress’ purpose in passing Section 1983 supports denying qualified immunity to the officials who violated Priscilla’s constitutional rights. CAC noted that Congress passed Section 1983 “in part, to curb retaliation by state and local officials against those who spoke out against slavery, racism, and abuses of authority in the South.” CAC concluded that “the decision of the district court is at odds with the text, history, and common-law backdrop of Section 1983.”
Young America’s Foundation submitted an amicus brief through the Alliance Defending Freedom, highlighting its interest in “train[ing]” aspiring conservative journalists “to use classic journalistic methods, including seeking news from government officials.” YAF’s brief supports Priscilla, arguing that “Ms. Villarreal’s right to gather and publish truthful news has been clearly established for decades.” YAF likewise urged the Fifth Circuit to “correct its [First Amendment] retaliation precedent” and abandon the requirement that a plaintiff demonstrate they curtailed their speech after the government’s retaliatory act.
Americans for Prosperity submitted an amicus brief, highlighting their concern about “use of the doctrine of qualified immunity to chill speech.” AFP’s brief urges the Fifth Circuit to deny qualified immunity to the officials who violated Priscilla’s constitutional rights since they had months to contemplate the illegality of their actions. The group wrote that “where, as here, a slow-moving chain of events unfurls over a multi-month period, qualified immunity should be applied rarely, if at all.” AFP explained that when government officials are not making split-second decisions, “any questions regarding the lawfulness of a policy, regulation, or proposed course of action, could be analyzed before action is taken.”
Independent Texas journalists Avi Adelman, Stevn Monacelli, and Christopher Rusanowsky who, like Prisicilla, have been arrested or detained by police in the course of newsgathering, submitted an amicus brief with the help of Vinson & Elkins LLP and the Southern Methodist University Dedman School of Law First Amendment Clinic. They argue the Fifth Circuit should abandon its unique requirement for individuals to curtail their expression in order to preserve a First Amendment retaliation claim. The brief explains that the requirement “rewards government misconduct and encourages additional self-censorship.”
The Cato Institute submitted an amicus brief, stressing its interest “in ensuring accountability for public officials.” Cato’s brief addressed the independent intermediary doctrine, which can provide immunity to government officials for a Fourth Amendment search or arrest if a magistrate judge signs a warrant. Cato’s brief argues that “the en banc Court should reconsider the independent intermediary doctrine at a fundamental level, as it is a judge-made immunity that originated in this Circuit and inconsistent with the text and history of Section 1983.” Cato’s brief argues that “the independent intermediary doctrine places nearly insurmountable obstacles in the way of plaintiffs seeking to vindicate their rights.”
Priscilla and her counsel are thankful for the support of this impressive and politically diverse coalition. Priscilla’s case will play a critical role in protecting the First Amendment rights of all Americans to ask questions of government officials and criticize them without fear of arrest or retaliation. Oral argument before the en banc Fifth Circuit is scheduled for Jan. 25, 2023, in New Orleans, Louisiana.