Five years ago, the Institute of Forensic Science in Harris County, Texas, sent me post-mortem reports of two other people who had died in a drug bust in Houston. After I wrote an article based on those reports, the county district attorney told me it wasn’t public data because it was part of an ongoing investigation.
Although I didn’t realize it at the time, I had committed a crime just by asking for this information. One might think that a law that criminalizes journalism is manifestly unconstitutional. But if you do, you are wrong, according to a ruling last week. through the United States Court of Appeals for the Fifth Circuit.
The case comes to Priscilla Villarreal, a Laredo, Texas, gadfly and handyman journalist who was arrested in 2017 for violating Section 39. 06(c) of the Texas Penal Code. Under this law, anyone who “solicits or receives” data “that has not been made public” by a government official “with the intent to gain an advantage” commits a third-degree felony punishable by two to ten years in prison.
Villarreal reportedly did this by asking Laredo Police Officer Barbara Goodman about a suicide and a fatal car accident. Goodman showed the call and paintings by a U. S. Border Patrol painter. A U. S. accident victim who jumped off a Laredo overpass, as well as the last call from a crash victim. Villarreal included this data in reports on its popular Facebook page.
Texas defines “benefit” as “anything reasonably regarded as economic gain or advantage.” According to the arrest affidavits, the “benefit” that Villarreal sought was a boost in Facebook traffic.
Section 39. 06(c) defines “data that has not been made public” as “any data to which the public does not have access” whose disclosure is also “prohibited” under the Public Information Act. Texas Public Information. Arrest affidavits did not meet this last requirement at all.
Although this law has been in effect for more than two decades, no one has been convicted under it. Laredo police have also never been accused of violating this law.
After a Texas ruling blocked Villarreal’s prosecution, deeming the law unconstitutionally vague, she filed a federal lawsuit against the officials involved in her arrest, arguing that they targeted her because they were disappointed by her open denunciation of local authorities. She said several police officers taunted her after her arrest, laughing as they fired with their cellphones.
A federal ruling dismissed Villarreal’s lawsuit after finding that the officials were under qualified immunity, which allows federal civil rights lawsuits only when they allege misconduct that violates a “clearly established” law. A Fifth Circuit panel overturned that ruling in 2021.
“Priscilla Villarreal was jailed for asking a police officer a question,” Judge James Ho wrote. “If this weren’t a flagrant violation of the Constitution, it’s hard to believe what it would be. “
After reviewing the case, nine of Ho’s colleagues disagreed, believing that police had probable grounds to arrest Villarreal and that the law was not so blatantly unconstitutional as to have merited identifying it as inconsistent with the First Amendment. Most blamed Villarreal for a “backdoor source,” a regime reporting practice that exposed abuses such as Watergate, the My Lai massacre, the Vietnam War hoax and torture at Abu Ghraib prison.
Seven justices dissented. They noted that Laredo police had spent months investigating Villarreal, a cry of the “split-second trials” to which qualified immunity is intended to be applied. “If the First Amendment means anything,” Ho wrote, “it surely means that citizens have the right to question or criticize public officials without fear of imprisonment. “
The Foundation for Rights and Individual Expression represented Villarreal, who has met with ideologically varied groups, adding news organizations, the Institute for Justice, the Cato Institute, the Center for Constitutional Accountability, the Electronic Frontier Foundation, Project Veritas and the Young America Foundation. The Fifth Circuit majority identified the risks of treating journalism as a crime.