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Routine journalism or felony solicitation? Fifth Circuit hears case of jailed reporter

An unconventional media personality who livestreams news to her more than 200,000 Facebook followers, Priscilla Villarreal was arrested for her communications with a police officer.

(CN) — A popular Texas independent journalist who was arrested on felony “misuse of official information” charges after publishing names she obtained from a police officer asked the full Fifth Circuit on Wednesday to revive her First Amendment lawsuit.

Priscilla “Lagordiloca” Villarreal is lauded as a throwback to the muckraking journalists of the early 1900s and an adept user of modern tools, livestreaming her on-the-scene coverage of events in her hometown Laredo on her Facebook page.

Since launching the page in 2015, she has amassed more than 200,000 followers and the public is an integral part of her work, frequently giving her tips about car accidents, fires and police chases.

She has even broken news about corruption of public officials that has led to FBI probes in the bustling border city, population 256,000, which boasts the busiest inland port on the southwest border with millions of trucks each year passing to and from Mexico.

In December 2017, Villarreal turned herself in after learning Laredo police had obtained an arrest warrant for her.

She was charged with two felony counts after publishing the names of a Border Patrol officer who died by suicide after jumping off an overpass and victims of car wreck before they were made public.

Though a Laredo police officer had given her the names, prosecutors alleged she had violated Chapter 39.06 of the Texas Penal Code, which bars soliciting or receiving information from a public servant that has not been made public with the intent to obtain a benefit. Police said her benefit was the Facebook followers she gained by publishing news before other media outlets did.

A state judge determined the statute was unconstitutionally vague in response to Villarreal’s habeas petition and the charges were dropped.

Represented by JT Morris of the Foundation for Individual Rights and Expression, Villarreal then sued the city of Laredo, Webb County and several prosecutors and police, alleging they had unlawfully arrested her and retaliated against her for her candid reporting and criticism of Laredo authorities in violation of the First, Fourth and 14th amendments.

A federal magistrate judge dismissed her case, finding qualified immunity protected the officials. But a Fifth Circuit panel revived her case in November 2021 with a 2-1 order.

While dismissing her retaliation claims, the majority found there was no question her arrest had violated the First Amendment.

“If the First Amendment means anything,” wrote U.S. Circuit Judge James Ho, “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 Donald Trump appointee added.

But that opinion did not stand. The New Orleans-based appellate court vacated it last October and granted the defendants’ petition for a rehearing before all the court’s 16 active judges.

A schism emerged in Wednesday’s hearing between Ho and one of his most outspoken colleagues, U.S. Circuit Judge Edith Jones.

Villarreal’s attorney, Morris, argued in his opening that qualified immunity does not shield the defendants because it was clearly established the First Amendment protected Villarreal asking a Laredo police officer questions about two public incidents and then reporting what the officer shared.

Morris said in a nutshell, the basis for her arrest was “routine journalism.”

But Jones pushed back. The Ronald Reagan appointee noted a magistrate judge signed the arrest warrant affidavit prepared by Laredo police and said all the elements of the offense—that Villarreal received nonpublic information from a government official and obtained a benefit—were laid out in the criminal complaint against her.

Siding with Villarreal, Ho stated he believes the warrant affidavit was faulty because it did not cite exceptions against the Laredo officer sharing the names with Villarreal.

Texas has a longtime policy that citizens are entitled to complete information about government affairs, unless the data is deemed exempt from disclosure under the Texas Public Information Act, such as information about ongoing criminal investigations, or prepared by a prosecutor in preparation for a trial.

Morris said Villarreal had no idea the information she asked for was nonpublic.

“Defendants are essentially saying Ms. Villarreal and every other citizen has an obligation to understand which of 60 [disclosure] exceptions to the Texas Public Information Act might apply,” he stated.

On rebuttal, William McKamie, the city of Laredo’s outside counsel, said the case is not about the First Amendment, but about a statute “that regulates conduct, not speech.”

He said Villarreal knows the proper way to request information from the Laredo Police Department is through its public relations officer, but she chose to go through an illicit “back channel”– the officer who provided her the names of the deceased – and by doing so herself committed a felony.

“Asking a back channel for information, even the codes of ethics of the Society of Professional Journalists dissuades journalists from taking that action,” said McKamie of the Fort Worth firm Taylor Olson Adkins Sralla and Elam.

Texas Attorney General Ken Paxton’s office intervened in the case and urged the Fifth Circuit to affirm the lower court’s dismissal of Villarreal’s claims.

A group of media organizations, meanwhile, lobbied on behalf of Villarreal in an amicus brief, pressing for adoption of Ho’s view that Villarreal’s arrest clearly trampled press freedoms enshrined in the First Amendment.

“This Court should affirm that the American press can do the simple, and fundamentally important, democratic task for which Villarreal was arrested: ask questions of the government,” they wrote.

The appellate court’s judges did not say when they would rule on the case.

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