Supreme Court Shrugs Off Opportunity To Save The First Amendment From The Fifth Circuit’s Antipathy

The Supreme Court’s latest recap of its relative inactivity (Trump administration “emergency” appeals aside) has delivered yet more evidence of this court’s indifference to rights violations committed by the government. Other cases involving alleged rights violations that should have — at the very least — been handed over to jury for further consideration were tacitly blessed by the top court in the land by its refusal to grant certori.

This one — involving the retaliatory arrest of an independent journalists by cops who didn’t like her reporting — is yet another miscarriage of justice by a Supreme Court whose majority simply won’t take cases that might force it to hold the government accountable for its actions.

This case has bounced up and down the judicial ladder for more than a half-decade. Laredo, Texas native/independent journalist Priscilla Villarreal has been live streaming and reporting via Facebook under the name “Lagordiloca” for several years. Laredo PD officers don’t like her because she asks them questions they don’t like answering and films them when they’re performing traffic stops and arrests.

After Villarreal published information about a Border Patrol officer who had committed suicide, the Laredo PD worked with local prosecutors to have her arrested. All Villarreal had done was ask a PD employee to confirm information she’d already obtained. The PD responded by opening an internal investigation to oust the employee that had responded to Villarreal’s queries. Then it decided the only way for justice to be done was to arrest the person who had merely received confirmation (via a law enforcement employee) she already had in her possession.

Prosecutors claimed Villarreal’s acquisition and publication of this information violated a state law forbidding people from profiting from “misuse of official information.” To support this claim, the prosecutors claimed Facebook clicks were a form of “profit.” To date, no other citizen has ever been prosecuted under this law that was clearly written to prevent government employees from profiting from information only government employees might have access to.

The local judge immediately tossed the bullshit charges immediately after they were presented to her in court. Somehow, the district court managed to look past the obvious First Amendment violations to give the officers immunity. The Fifth Circuit’s first pass reversed this, with Judge Ho making it clear there’s no way any reasonable officer would have thought arresting a journalist simply for asking questions didn’t violate the Constitution.

This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment.

Then things got weird. A couple of judges in the minority thought this shouldn’t stand and started making noise. The Fifth Circuit agreed to an en banc hearing and reissued this opinion with a new dissent written by Chief Judge Priscilla Richman, along with some additional commentary by Judge Ho about how far removed from sanity Richman’s dissent was.

Two years later, it handed down its second take. And the majority somehow came to the conclusion that it’s okay to engage in retaliatory arrests as long as you can find any criminal statute at all to support the arrest. According to Judge Jones, Villarreal should have either limited herself to official channels or challenged the law itself in court, rather than ask a government employee to verify information Villarreal already possessed.

This was appealed. Eight months later, the Supreme Court sent it back down to the Fifth Circuit for yet another pass, instructing it to apply the Trevino standard. That standard is fairly simple: if a law is rarely, if ever, enforced but somehow shows up conveniently to do the cops’ dirty work when they want to retaliate against a person they don’t like, there’s a good chance this selective application is an established violation of rights. In this case, prosecutors had never used this law to charge anyone ever.

The Fifth Circuit’s third pass — again written by Judge Edith Jones — said the Trevino factor just didn’t matter. If the law was on the books (even if it had never been enforced), it was justification enough for the arrest. And even if that arrest violated the Constitution, the officers should still be given qualified immunity because how could they have known that arresting the only person ever charged with this crime in its 23 years of existence might somehow be unconstitutionally retaliatory?

Now that we’re caught up, this is how it ends for Priscilla Villarreal:

The petition for a writ of certiorari is denied.

There’s a dissent written by Justice Sotomayor that’s even lengthier than my preamble. It’s worth reading, though, and it starts with this admonishment of the majority’s refusal to write this obvious wrong:

It should be obvious that this arrest violated the First Amendment. Yet the Fifth Circuit held that the officials were entitled to qualified immunity, and now Villarreal is left without a remedy. The Court today makes a grave error by declining to hear this case.

The nation’s top court has decided the Laredo PD and local prosecutors can walk away cleanly from a series of extremely obvious rights violations. And in doing so, it emboldens them (and others) to engage in future retaliatory arrests of journalists they don’t like.

The Supreme Court majority is apparently willing to pretend rights don’t exist when it’s convenient to do so, just like the officers whose actions it tacitly blesses with this particular inaction. Sotomayor drills down on this, rubbing the majority’s nose in its deliberate dismissal of constitutional rights:

[T]he Fifth Circuit found that the officials reasonably believed that they had probable cause to arrest Villarreal for violating §39.06(c). Id., at 385–390. Not so. Just like an individual cannot be convicted of a crime for engaging in First Amendment activity, it is axiomatic that a probable cause determination cannot be based on such protected activity either.

[…]

It necessarily follows that when an arrest is based on protected First Amendment activity, that activity cannot constitute probable cause and support adverse police action. All reasonable officers know this.

[…]

Here, it is hard to conceive of a more obvious constitutional violation than arresting a journalist who, in searching for corroboration, simply asks a government source for information. That is the essence of many journalists’ jobs. The arrest does not somehow become reasonable, and constitutional, merely because an unconstitutional application of a statute authorizes it.

All we have is the dissent. All Villarreal has is knowledge Laredo PD officers and local prosecutors will be digging through the state statutes to find something else to charge her with the next time her reporting pisses them off. The Supreme Court issued a short, clear instruction to the Fifth Circuit, telling it to apply a specific legal standard. Instead, the Fifth Circuit — led by the consistently awful Judge Edith Jones – sidestepped this instruction on its way towards granting the officers qualified immunity. And that deliberate refusal to engage with the Supreme Court’s specific instructions has now been ignored by the same court that strongly hinted the Fifth Circuit got this wrong. It’s a shrug that lets the general public know exactly where it stands: at the bottom of the national organization chart with no layers of protection between them and government officials who seek to do them harm.