A Couple Of Fifth Circuit Appeals Court Judges Look Like They Believe Performing Journalism Is A Criminal Act

In 2018, Laredo (TX) police officers arrested independent journalist Priscilla Villarreal after she published the name of a Border Patrol agent who had committed suicide. The alleged crime was misuse of official information." But all Villarreal had done was perform an act of journalism: she had asked Laredo police officer Barbara Goodman to verify information she'd obtained elsewhere.

Rather than limit itself to punishing Goodman for leaking information the PD hadn't made public yet, it went after the local journalist - one many local cops didn't care for. This move was an anomaly. No journalist has ever been arrested under this statute, mainly because it's an anti-corruption law meant to deter politicians from using official information to personally enrich themselves.

But the cops claimed the fact that Villarreal had a Facebook account with followers was enrichment in and of itself, stating that she was using this information to attract more viewers for her livestreams. It was all obviously bullshit. It was so obvious the Fifth Circuit denied immunity... twice. First, it stripped the immunity the lower court awarded.

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 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.

[...]

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

Then it republished the opinion a few months later, this time with an extremely stupid dissenting opinion attached.

That dissent was written by Chief Judge Priscilla Richman. Her dissent was torn apart by Judge James Ho, who more politely summarized her arguments this way:

The dissent claims that this concurring opinion directly conflicts with the majority opinion's holding."

I don't see how. There are two separate and independently compelling reasons why reversal is warranted. And they're entirely compatible with one another. First, 39.06(c) can and should be construed not to prohibit Villarreal's acts as a journalist. Second, if that's wrong, and the statute does in fact criminalize Villarreal's acts as a journalist, then 39.06(c) is obviously unconstitutional.

So far, so good. But two months later, the Fifth Circuit pulled the opinion ahead of an en banc hearing - one prompted by an unnamed judge's demand the case be reheard.

A member of the court having requested a poll on the petitions for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,

The smart money says Judge Richman is the member of the court" who wanted this reheard. I guess it simply wasn't enough that the Fifth republished its original decision just so it could attach her ridiculous dissent that basically said using an anti-corruption law to jail a journalist is cool and legal.

But to come out ahead in a poll, Richman would need some allies who felt it isn't clearly settled that it's a rights violation to arrest journalists for doing journalism. Cameron Langford, covering the oral arguments for Courthouse News Service, has made it much easier to spot Judge Richman's anti-speech, pro-cop buddies.

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.

Jones is definitely on Judge Richman's side. Her legal history shows there are plenty of rights and protections she feels certain people just shouldn't have.

In her opinions, she has questioned the legal reasoning which legalized abortion, advocated streamlining death penalty cases, invalidated a federal ban on possession of machine guns and advocated toughening bankruptcy laws. In 2006, Chief Judge Jones found that a death row inmate who had filed a pro se motion to drop his appeal while his attorney was abroad could not later reinstate his appeal.^[7] In June 2017, Jones dissented when the court found that a university did not violate the Due Process Clause or Title IX when it expelled a student for committing a campus sexual assault as well as his girlfriend, who had recorded the assault and shared the video on social media.^[8][9] In May 2018, Jones wrote for the court when it found that Texas Senate Bill 4, which prohibits local governments or public employees from criticizing federal immigration enforcement or from praising sanctuary cities, did not violate the First Amendment.^[10][11]

Who else thinks journalists should be arrested for doing journalism?

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.

And the state AG felt he needed to get involved despite the law having already been declared unconstitutionally vague en route to prosecutors dropping the felony charges against Villarreal.

Everything is still up in the air in the Fifth. Strongly worded opinions (the original and Judge Ho's concurrence) upholding the plainly obvious free speech rights of journalists were swept away because a couple of judges apparently believe people should have fewer rights and cops should have more options when seeking to silence critics.