She Was Jailed for Basic Journalism. A Federal Court Isn't Sure if That's Unconstitutional.

Alliance Defending Freedom (ADF) is most known for its work taking up controversial religious freedom cases. They famously defended Jack Phillips, a baker who was the subject of a high-profile suit after he declined to make a cake for a same-sex wedding. More recently, the organization argued in front of the U.S. Supreme Court in favor of Lorie Smith, a website designer who preemptively challenged a Colorado law so that she would not have to design wedding sites for gay couples in violation of her religious beliefs.

They are not known for defending foul-mouthed, left-leaning journalists whose bread and butter consists sometimes of criticizing the police. They're doing so anyway.

That journalist is Priscilla Villarreal, whose presence in Laredo, Texas, is associated with her profanity-laced commentary on law enforcement and who police jailed for the crime of asking the government questions, getting answers, and publishing those responses. That would appear to be a fairly cut-and-dry infringement on her First Amendment rights. Yet, it's a question that has stumped the U.S. Court of Appeals for the 5th Circuit in a case that could have far-reaching implications for anyone engaged in journalism, regardless of their political bent.

In 2017, Villarreal found herself in a jail cell after publishing two stories on her popular Facebook page, Lagordiloca, which as of this writing has attracted 202,000 followers. The first story pertained to a Border Patrol agent who committed suicide; the second revealed the identity of a family involved in a deadly vehicle accident. The stories were standard. But Villarreal had already drawn the ire of the local police department with her reporting, which has included, among other things, a livestream of an officer choking someone at a traffic stop and heavy criticism levied at a local prosecutor.

So the Laredo Police Department (LPD) moved to criminally charge her for that reporting, citing a Texas law that forbids obtaining "nonpublic information" from the government if the person doing so—in this case, Villarreal—has an "intent to benefit." Richly ironic is that it was the LPD that gave her the information she requested. Even more absurd is that her alleged "intent to benefit" in seeking the information was getting more Facebook followers.

It's a logic that would render any sort of journalistic activity illegal, when considering that all media outlets seek out nonpublic information (it's called "reporting") and do so to bring in revenue via subscriptions or social media followers (it's called "a business").

Which brings me back to ADF. "Ms. Villarreal's right to gather and publish truthful news has been clearly established for decades," ADF attorneys Rory T. Gray and John J. Bursch write in their amicus brief. "It was plainly unconstitutional for Defendants to attempt to bar Ms. Villarreal from using standard journalistic techniques to uncover and report news. Defendants' harassment of Ms. Villarreal, efforts to bar her from seeking non-public information from officials, and better treatment of the general public makes the First Amendment violation plain."

Villarreal has little in common with Jack Phillips and Lorie Smith. I doubt the team at ADF is taking the time to support her because they love everything she has to say or the way in which she chooses to say it. It's because they appear to understand that constitutional rights do not just apply to those who we find appealing.

"The First Amendment transcends tribalism. It's about whether the government can purge people and ideas from the marketplace simply because it doesn't like their views," Gray tells Reason. "Americans deserve better and the Constitution requires it. In this case, a victory for Ms. Villarreal helps preserve free speech for all of us."

That concept is lost on many these days, in a country where political tribalism is often paramount to principle—where Team Blue and Team Red support free speech so long as they like what they hear. Indeed, it may be lost on some of the judges at the 5th Circuit—often described as a conservative body—as seen by their reactions to Villarreal's claim.

For jailing Villarreal, the U.S. District Court for the Southern District of Texas gave the Laredo police qualified immunity. In other words, they concluded it was not "clearly established" that jailing a journalist for journalism is a violation of the Constitution, despite the fact that we'd likely expect a middle schooler taking eighth-grade civics to come to the opposite conclusion. The 5th Circuit Court of Appeals rejected that initial decision. "If [this] is not an obvious violation of the Constitution, it's hard to imagine what would be," wrote Judge James C. Ho.

But a majority of the 16 judges on the 5th Circuit panel agreed to rehear the case en banc, indicating dissatisfaction with Ho's opinion. They will do so tomorrow. For a view into potential reasons for the judges' opposition, we can look to the words Chief Judge Priscilla Richman: "Villareal's [sic] Complaint says that she 'sometimes enjoys a free meal from appreciative readers, . . . occasionally receives fees for promoting a local business [and] has used her Facebook page [where all of her reporting is published] to ask for donations for new equipment necessary to continue her citizen journalism efforts," she wrote in dissent. "With great respect, the majority opinion is off base in holding that no reasonably competent officer could objectively have thought that Villareal [sic] obtained information from her back-door source within the Laredo Police Department with an 'intent to benefit.'"

In other words, the officers' conduct was justifiable because Villarreal sometimes gets free lunch from her readers and viewers. It's the kind of interpretation that would be funny if it weren't published by one of the most influential courts in the nation, written by one of the most powerful jurists alive today. One doubts that Richman, also known for her conservative jurisprudence, would have come to a similar conclusion had she been a bit more ideologically aligned with the plaintiff.

But ADF is not alone in trying to sway Richman et al. from siding with the government. Also writing in support of Villarreal are Project Veritas, the far-right group founded by James O'Keefe; Americans for Prosperity, the conservative-libertarian activist organization; the Cato Institute, a libertarian think tank; the Constitutional Accountability Center, a progressive think tank; and the Electronic Frontier Foundation, a group that defends civil liberties in the digital space.

The Venn diagram connecting these groups has very little overlap. To find something they all agree with in the practical sense would be a difficult task. But they can come together on at least one thing, which is that your constitutional right to free speech should not live or die based on the popularity of what you're saying. This basic principle has been lost on some at the 5th Circuit, though they have a chance to right that wrong tomorrow.