Three years after her arrest, she is suing the city and some of its employees, charging that her arrest was retaliatory. Her case involves a 2020 preoccupation, police misbehavior, and a court-created rule, “qualified immunity,” that breeds misbehavior by enabling much of it to go unpunished.
Villarreal, who sometimes uses salty language that would cause blushes below deck in a troop transport, has used her cellphone and her Facebook page — she has more than 170,000 followers — to livestream and comment on crime scenes, traffic accidents, immigration enforcement and other matters, including police behavior. She has enemies in high places.
Three years ago, she received information from a government source not authorized to dispense it, including the name of a federal law enforcement officer who committed suicide — information the police were legally required to release promptly. An arrest warrant was issued against her for violating the Texas Misuse of Official Information Statute. It criminalizes “solicit[ing] or receiv[ing] . . . any information to which the public does not generally have access, and that is prohibited from disclosure.”
Many states have laws that punish public officials for the unauthorized sharing of official information. Missouri, however, might be the only other state that criminalizes non-officials for obtaining or sharing information. The Supreme Court’s ruling in the 1971 Pentagon Papers case is only the most famous case affirming the First Amendment right to publish information even if obtained from a government source who violated a duty or law in dispensing it.
Villarreal’s arrest was the culmination of police harassment, which included officers describing her as having five felony convictions. This is five more than she has. But when she filed a civil suit against Laredo and some officers, seeking damages for a retaliatory arrest, a district court held that the officers were protected by qualified immunity.
In 1871, Congress legislated that government officials who violate a citizen’s constitutional rights “shall be liable to the party injured.” In 1982, however, the U.S. Supreme Court largely nullified this by holding that the official’s conduct must violate “clearly established law.” The rule is applied this way:
Trivial factual distinctions between indisputably unconstitutional behavior in case A, and similar but not exactly identical behavior in a prior case B in the same judicial circuit, means that the official in case A has immunity even though the violation of rights is obvious. The theory is that if the official’s behavior did not precisely match the fact pattern in a prior case, the official did not have clear notice (“fair warning”) that his action was wrong.
Villarreal is asking the U.S. Court of Appeals for the 5th Circuit to hold that those responsible for her arrest either knew or are culpable for not knowing that the law she was accused of breaking by gathering news was unconstitutional. An Institute for Justice amicus brief notes that at least seven of the 13 U.S. circuit courts deny qualified immunity when officials justify their unconstitutional actions by citing a statute, if the statute is “patently violative” of a constitutional right.
The Texas statute criminalizes routine newsgathering, subjecting to arrest people who seek or receive information from government sources other than designated information gatekeepers. This violates First Amendment guarantees of freedom of speech and of the press. The Institute of Justice’s brief argues that anyone with a “passing familiarity” with the First Amendment and pertinent case law would not have issued an arrest warrant against Villarreal even though there has been no factually identical prior case.
If the 5th Circuit agrees to hear this case and rules for Villarreal and against qualified immunity for her persecutors, this will increase pressure on the Supreme Court to rethink such immunity. If so, police accountability, and the protection of constitutional rights, will have been advanced by an improbable journalist.
Actually, not so improbable: Five of the 10 most-visited U.S. websites (YouTube, Reddit, Facebook, Twitter, Instagram) are platforms for sharing user-generated information and ideas.