A riff between two judges in the United States’ most conservative federal appeals court reflects the ongoing debate of accountability when a government potentially breaches the First Amendment.
Trump-appointed Judge James Ho had some words for Chief Judge of the U.S. Court of Appeals for the Fifth Circuit Priscilla Richman, in an August 12 court opinion about a citizen journalist case.
Laredo, Texas, citizen journalist Priscilla Villarreal was arrested for questioning police in 2017 after she was able to confirm the names of subjects in stories she wrote by contacting a Laredo Police Department officer. Six months later, two arrest warrants were issued, alleging Villarreal violated a state statute that considers it a criminal offense to obtain information from a public servant for economic gain. The majority opinion notes Villarreal was “not shy about criticizing law enforcement.”
After Villarreal was released, she filed a lawsuit alleging infringement of her First Amendment right, wrongful arrest, and conspiracy. The district court dismissed all of Villarreal’s claims, stating that the city and officers were shielded by qualified immunity. However, on appeal, the Fifth Circuit found that the state law regarding economic gain was unconstitutionally applied and had not been enforced “in the nearly three-decade history of that provision.”
The Fifth Circuit ultimately dismissed Villarreal’s claims against the City of Laredo last November but allowed First, Fourth, and Fourteenth Amendment claims to go forward on remand against the police. Ho penned the majority opinion, writing that “if the First Amendment means anything, 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. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution,” he continued.
On August 12, 2022, the court withdrew its original opinion in the case and put forth a new one to include a dissent from Richman, a Bush appointee, along with a critical response from Judge Ho.
In her dissent, Richman contended that “it is asking a lot of law enforcement officers to know about and then apply the doctrine of constitutional avoidance.” Ho, in response, argued that “we don’t just ask — we require — every member of law enforcement to avoid violations … given the considerable coercive powers that we vest in police officers.”
Richman also argued that the police officers’ actions cannot be questioned because a magistrate issued the warrants and a federal court granted the officers qualified immunity.
“If I understand the dissent’s theory, however, it’s that it’s just too insulting for us to deny qualified immunity, when a fellow member of the federal judiciary has already voted to grant such immunity,” Ho replied. “But that would mean that, if one member of the judiciary would grant qualified immunity, the rest of us have no choice but to go along. That can’t be right. That not only misunderstands qualified immunity — it’s an alarming theory of our role under the Constitution.”
Richman additionally claimed that Villarreal acted with the intent to obtain economic gain in violation of state law because she “sometimes enjoys a free meal from appreciative readers.” Ho hit back at that claim, arguing that Richman’s reading of the statute makes it “a crime to be a journalist in Texas.”
“Other journalists are paid full salaries by their media outlets. And they talk to government sources about non-public information, too. Should they be arrested, too? Surely not. Yet that’s precisely (if alarmingly) what the dissent seems to have in mind. To quote the dissent, ‘the statute does not exclude journalists,’” Ho wrote.
Ho singled out the police, stating that he was perturbed by their “unabashedly selective behavior.”
“In these already troubling times, this is an exceedingly troubling case. It’s bad enough when private citizens mistreat others because of their political views. It’s beyond the pale when law enforcement officials weaponize the justice system to punish their political opponents. One is terrible. But the other is totalitarian,” he said.
“I’m grateful that the majority of our court will not stand for that here,” he continued. “I just wish we were unanimous in this regard.”
The case is Villarreal v. City of Laredo, No. 20-40359 in the U.S. Court of Appeals for the Fifth Circuit.
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