An appellate judge said Texas appears to be trying to criminalize journalism during a Fifth Circuit hearing over a citizen journalist’s arrest for publishing the unreleased names of two people who died.
NEW ORLEANS (CN) — A panel of Fifth Circuit judges heard arguments related to the First Amendment on Wednesday in the case of a popular citizen journalist in Texas who was arrested for putting the names of two deceased people on social media before they were made public by authorities.
Priscilla Villarreal is a 36-year-old, 10th-grade dropout who reports exclusively on Facebook in an expletive-laced mix of English and Spanish and calls herself La Gordiloca, or, roughly translated, “crazy fat lady.”
Since 2015, Villarreal has reported on everything from vehicular accidents to public corruption by officials in Laredo, a border city of 260,000. Her reporting, especially on corruption, has led to investigations by the FBI and other agencies.
In December 2017, Villarreal was charged with two felony counts of misuse of information after she published the names of victims in a suicide and car crash on Facebook. She said she got the names from a Laredo police officer who was subsequently investigated by the department.
Texas Penal Code 39.06(c) makes it a Class 3 felony to seek and receive information from an official that has not yet been made available to the public. The statute was later found to be unconstitutional and the charges were dropped.
Villarreal filed a federal lawsuit against several city and county officials in 2019, claiming she was wrongly arrested and retaliated against for publishing “unfavorable information and commentary on her Facebook page.”
The district court dismissed her case, finding the local government officials were entitled to qualified immunity. She then appealed to the New Orleans-based Fifth Circuit.
Villarreal’s attorney J.T. Morris told the three-judge panel Wednesday that the district court would have reached a different conclusion had it first addressed protected speech, and whether his client actually violated the statute, before turning to immunity.
Morris argued that the state law at issue cannot be used against “ordinary, everyday journalism,” and called Villarreal’s attempted prosecution under it “selective enforcement” since no charges had been brought before under the statute.
“This is routine journalism: asking government officials for facts” and reporting accurately what the information is, the attorney told the judges.
But attorney William McKamie, who argued on behalf of the city of Laredo, said Villarreal should not have sought the names of the deceased before they were made public and should not have published them on Facebook.
The judges appeared skeptical of this argument.
“If a public official violates some privacy rule, I would think that’s a problem for the public official,” said U.S. Circuit Judge James C. Ho, an appointee of Donald Trump.
“A citizen can ask anything. Of course, broadly, anyone can ask a question,” McKamie replied. But, he added, the government holds “much information that if disclosed might violate privacy rights.”
Ho still seemed unconvinced.
“So you’re saying the public has a right to ask, so long as it’s already public info,” the judge said.
Ho later asked of Villarreal’s charges and arrest, “Does this criminalize journalism?”
“No,” McKamie replied, because a publication did not get in trouble, just an individual.
Ho said if that’s the case, it sounded to him like being a journalist is becoming a crime in Texas.
U.S. Circuit Judge James Graves Jr., an appointee of Barack Obama, asked McKamie if the officer who gave the information to Villarreal has since been prosecuted. The attorney did not answer after the judge again pressed if the officer was disciplined.
Attorney Jason Magee, who argued on behalf of some of the officers named in Villarreal’s lawsuit, said he agreed with McKamie “in that this case certainly does not revolve around the disclosure of information,” but about whether the officers involved have qualified immunity.
In his May 2020 ruling in favor of the officers, U.S. District Judge John A. Kazan said Villareal did not overcome the “high bar” of the immunity defense invoked by the defendants.
“Defendants arrested and attempted to prosecute plaintiff under a Texas state statute later found to be unconstitutional. Plaintiff claims this was done in retaliation for previously publishing negative stories about defendants on Facebook,” wrote Kazan. “Defendants have raised various legal defenses to plaintiff’s claims, including the defense of qualified immunity for the individual officials. The purpose of that doctrine is to protect ‘all but the plainly incompetent or those who knowingly violate the law.’”
Ho repeated his concerns to Magee.
“Help me out here,” the judge said. “To me it looks like this statute effectively criminalizes journalism.”
When Magee did not address that statement head on, Ho reiterated that journalists routinely ask for information that hasn’t been made public yet.
“Journalists don’t just dutifully report what’s on press releases,” he said.
Ho pressed Magee, using a hypothetical scenario involving the leaked Pentagon Papers that exposed government wrongdoing during the Vietnam War. The Supreme Court allowed The New York Times to publish the documents, setting an extraordinarily high bar against prior restraint of the press.
“So before that, can the New York Times call up [then-Secretary of Defense Robert] McNamara and say, ‘Hey can you hand over the Pentagon Papers?” the judge asked.
Ho and Graves were joined on the panel by Chief U.S. Circuit Judge Priscilla Owen, a George W. Bush appointee. The judges did not indicate how or when they will rule.
Neither Magee nor McKamie immediately replied to emails asking for comment after the hearing.