Broad ‘friend of the court’ support pours into Supreme Court for citizen journalist Priscilla Villarreal

The government cannot jail journalists for asking a question. But local officials in Laredo, Texas, did just that, arresting citizen journalist Priscilla Villarreal for exercising her core First Amendment right to ask government officials for information as part of her local news reporting.  

The officials relied on a criminal statute, never enforced locally in the law’s 23-year history, prohibiting people from asking government officials for information that “has not been made public” if they want to “obtain a benefit.” That supposed benefit? Public attention — what every good journalist strives for to raise awareness about issues of public concern. 

Even though Priscilla was arrested for routine journalism that the First Amendment squarely protects, a sharply divided U.S. Court of Appeals for the Fifth Circuit ruled that the police officers and prosecutors who conspired to arrest Priscilla are entitled to qualified immunity and do not have to face a lawsuit. 

Priscilla’s case will play a critical role in protecting the First Amendment rights of all Americans to ask questions of government officials and criticize them without fear of arrest or retaliation.

On April 22, FIRE filed a petition for a writ of certiorari asking the Supreme Court to hear Priscilla’s case. Now, a diverse coalition of individuals and organizations, including press freedom advocates and critics of qualified immunity, have supported our effort with “friend of the court” briefs. These 13 amicus curiae briefs urge the Supreme Court to take Priscilla’s case in order to protect the First Amendment right to investigate and report the news and to hold officials accountable when they trample those rights.

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Here are the organizations and individuals weighing in on this important First Amendment case that will impact the rights of all journalists — professional and citizen alike:

• The Reporters Committee for Freedom of the Press and 21 news organizations including The New York Times, The Washington Post, and Sinclair Broadcast Group. These organizations use historical evidence about refusals to punish the press at the time of the nation’s founding to show that “no right is more fundamental to the practice of journalism than the one the Fifth Circuit declined to recognize: the right to ask public officials for information.” In addition to attorneys from RCFP, the parties are also represented by counsel at Jackson Walker LLP.
• A group of six current and former journalists: Radley Balko, David Barstow, Kathleen McElroy, Walter Robinson, John Schwartz, and Jacob Sullum. They survey the “two hundred years of history and decades of precedent” making clear that the First Amendment does not allow for arresting journalists for asking questions of government officials. In explaining why any reasonable officer would know as much, the amicus brief details the training and experience law enforcement officers have in responding to questions from the press. The brief also details how criminalizing routine newsgathering would prevent journalists from doing their jobs, providing real-life examples from the amici journalists to show how questioning government officials is vital to reporters’ work. The journalists are represented by counsel at Covington & Burling LLP.
• The MuckRock Foundation, an organization that drives public records requests across the country. The foundation draws on its experience in aiding journalists who use public records laws to expose government corruption, misuse of government funds, and other matters of public concern. If asking for information can be criminalized, Muckrock’s brief explains, the Fifth Circuit’s rationale will lead to the “absurd result of imposing liability not only on those who seek ‘confidential’ information, but on those who request information that the government may, but need not, make public.” Muckrock is represented by Prince Lobel Tye LLP.
• Avi Adelman and Steven Monacelli are independent journalists who, like Priscilla, have been arrested or detained while reporting on law enforcement. They detail how official government sources are increasingly closed-off, requiring reporters to develop unofficial sources to do their jobs. They explain that the Fifth Circuit’s decision will deter journalists from using those sources because it will lead them to fear retribution, making journalists “little more than conduits for government public relations copy.” Adelman and Monacelli are represented by the SMU Dedman School of Law First Amendment Clinic, Thomas Leatherbury, and Vinson & Elkins LLP.
• The Project for Privacy and Surveillance Accountability urges the Supreme Court to make clear that exercising First Amendment rights cannot serve as probable cause for an arrest. PPSA’s brief also explains that although the government “may choose to keep some information confidential,” it cannot “punish citizens for the mere act of asking questions.”

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The following coalition of organizations across the ideological spectrum joined to critique qualified immunity in cases like Priscilla’s:

• First Liberty Institute emphasizes the importance of the Supreme Court’s intervention where officials, like the ones who arrested Priscilla, “aggressively and arbitrarily apply their legislation in a way that clearly impedes on our most sacred freedoms captured in the First Amendment.” FLI explains how Priscilla’s arrest for asking questions “so obviously violated the First Amendment that no reasonable official would sanction the action.” FLI is represented by Dentons Bingham Greenbaum LLP.
• The Americans for Prosperity Foundation articulates why in cases like Priscilla’s — where the First Amendment violation is “intentional and slow-moving” over the course of months — qualified immunity should be applied “rarely, if at all.” AFPF urges the Supreme Court to ensure that idiosyncratic state laws criminalizing speech cannot supplant the broad protections of the First Amendment.
• The Law Enforcement Action Partnership — whose members include police, prosecutors, and other law-enforcement officials — explains how the Fifth Circuit’s ruling will deprive victims of an important tool to hold bad actors accountable, decrease public trust in law enforcement, and ultimately harm public safety. The brief observes that the problems created by the Fifth Circuit’s ruling will increase as criminal codes grow and retaliatory arrests become even more common. LEAP is represented by Gibson Dunn.
• Young America’s Foundation and the Manhattan Institute emphasize that qualified immunity does not shield those who violate clearly established rights from consequences, and they document how the First Amendment right of journalists and citizens to “ask questions of their government officials” has been clearly established for over 50 years. YAF and the Manhattan Institute are represented by the Alliance Defending Freedom and The Dhillon Law Group.
• The Institute for Justice urges review and reversal of the Fifth Circuit’s decision as contrary to history, policy, and Supreme Court precedent. Its brief explains how, under the original meaning of Section 1983, officials cannot evade liability merely by invoking a state criminal law. IJ’s brief warns that the upshot of the Fifth Circuit’s decision is to allow “motivated officials to use the innumerable laws, statutes, regulations, and ordinances on the books to find probable cause to arrest almost anyone.”
• The Constitutional Accountability Center focuses on the historical context in which Section 1983 was enacted, observing that Priscilla’s case “echoes this history.” CAC’s brief explains how Congress passed Section 1983 to end “the stifling of speech inflicted by unconstitutional state laws and biased state law enforcement” in the wake of the Civil War, slave codes, and Reconstruction.
• The Center for American Liberty emphasizes how the Fifth Circuit’s opinion mistakenly draws a distinction between the First Amendment right to publish information from the government and the right to ask for and receive that information. Its brief also points out how the Texas statute used to arrest Priscilla makes “journalists criminals for doing their job” by “outlawing the act of simply inquiring about information.” The Center for American Liberty is represented by Reeves Law LLC.
• The Cato Institute urges the Supreme Court to review Priscilla's case because granting qualified immunity to officers who have engaged in a retaliatory arrest on the basis of an obviously unconstitutional law threatens the freedom of speech and of the press. Cato’s brief highlights how the Texas statute officers used to arrest Priscilla “criminalizes basic journalism.”

Priscilla and her counsel are thankful for the support of this impressive and diverse amicus coalition. Priscilla’s case will play a critical role in protecting the First Amendment rights of all Americans to ask questions of government officials and criticize them without fear of arrest or retaliation.