Divided federal appeals court won’t revive Texas journalist’s lawsuit
A federal appeals court on Jan. 23, 2024, upheld the dismissal of citizen journalist Priscilla Villarreal’s lawsuit against officials from the City of Laredo, Texas, and Webb County stemming from her arrest in December 2017.
Villarreal was charged with two felony counts of “misuse of official information” after she publicized information about the identities of a man who died by suicide and a car accident victim before police released them through official channels.
The charges were dismissed in March 2019 when a judge ruled that the statute — which had never been successfully prosecuted — was unconstitutionally vague. In April 2019, Villarreal filed her lawsuit against 10 officials from the city and county alleging violations of her First and Fourth Amendment rights.
After a district court judge dismissed her claims, a panel of three judges with the 5th U.S. Circuit Court of Appeals initially ruled in her favor in November 2021. The court later vacated that ruling in favor of a full, en banc, panel hearing.
In the 5th Circuit’s subsequent decision, it ruled 9-7 that the city officials and police were entitled to qualified immunity, dismissing Villarreal’s allegations of retaliation.
“Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate,” Judge Edith H. Jones wrote for the majority. “She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source.”
In four lengthy dissents, circuit judges objected to the majority’s characterization of Villarreal and her work as a citizen journalist and expressed concerns over the impact the decision may have for freedom of the press.
“There is simply no way such freedom can meaningfully exist unless journalists are allowed to seek non-public information from the government,” Judge James Graves Jr. wrote in his dissent. “Today’s majority opinion overlooks that protection all too cavalierly.”
Neither Villarreal nor her attorney responded to requests for comment. In a post on Facebook, Villarreal wrote that she wasn’t surprised by the majority opinion and that she plans to appeal her case to the U.S. Supreme Court.
“[T]hey violated constitutional rights and someone needed to set these people straight,” Villarreal wrote. “I want to be the one that makes that change for the next person.”
Police in Laredo, Texas, subpoenaed the phone records of independent journalist Priscilla Villarreal on July 27, 2017, in an attempt to identify a confidential source, according to filings reviewed by the U.S. Press Freedom Tracker. After her phone carrier turned over the requested information, three additional subpoenas were issued seeking more of her communication records.
Villarreal — known by her pen name “La Gordiloca” — published the name of a Border Patrol agent who died by suicide on her Facebook page in April, before the Laredo Police Department’s official release about the incident. The LPD opened an investigation to identify who leaked Villarreal the name.
According to an arrest warrant approval form, an LPD officer obtained search warrants for call log records from the cellphones of Villarreal and her suspected source. The form states that the officer faxed the subpoenas on July 27 and AT&T provided the requested records several weeks later. Additional subpoenas for call logs and text messages from Villarreal’s phone number were filed on Sept. 14, Sept. 28 and Oct. 6.
Villarreal was arrested in December and charged with two third-degree felonies for “misuse of official information.” An attorney representing Villarreal filed a writ of habeas corpus challenging the constitutionality of the charges in February 2018.
“Today, in the State of Texas, it is illegal to simply ask a public servant for information if the information sought happens to be described in an obscure list of information categories that are subject to discretionary disclosure — rather than mandatory,” attorney Oscar Peña wrote. “The only thing keeping journalists from being prosecuted for this every day is the mercy of the police, the prosecutors and the political cost attendant. This too is alarming.”
A Texas state judge ruled in favor of Villarreal in March 2018 and dismissed the charges, finding that the statute the journalist was charged under was unconstitutionally vague.
In April 2019, Villarreal filed a civil lawsuit against the city of Laredo, Webb County and 10 law enforcement officials. The case was initially dismissed by a U.S. magistrate judge in May 2020, but a federal court of appeals reversed the decision in November 2021.
In August 2022, however, the U.S. Court of Appeals for the Fifth Circuit issued a substitute decision with the addition of a dissenting opinion from Chief Judge Priscilla Richman and a concurring opinion from Judge James C. Ho.
JT Morris, a senior attorney at the Foundation for Individual Rights and Expression who is representing Villarreal’s appeal, told the U.S. Press Freedom Tracker that the appellate court decided to rehear the case “en banc,” meaning that the entire bench of active judges for the court reheard the case.
Arguments before the judges were held in January 2023, Morris said, and the court’s ruling is now pending.
Editor’s Note: This article has been rewritten to include new information from court filings clarifying the timeline of the subpoena and Priscilla Villarreal’s subsequent lawsuit.