Wake Forest Law Review
13Feb

Take Names, Ask Questions…Never? Reviewing the Fifth Circuit’s Troubling Decision in Villarreal v. City of Laredo

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By Michael VerMeulen

In a legal battle between qualified immunity and freedom of the press, which one will come out on top? In the eyes of the Fifth Circuit, the First Amendment bows down to qualified immunity for police officers. [1]

This fight has come to the legal forefront in Villarreal v. City of Laredo.[2] The case concerns independent Facebook-based investigator Priscilla Villarreal who is infamous amongst police officers in the City of Laredo, Texas for filming crime scenes and covering police misconduct.[3] In an apparent act of retaliation, the Laredo Police Department arrested and detained Villarreal for violating Texas Penal Code § 39.06(c), under which a person may not inquire about non-public information that a public official has access to by means of their employment if the person has an intent to “benefit” from the information.[4] The Department based its arrest on Villarreal’s procurement of a deceased Border Patrol officer’s name prior to the Department’s public disclosure of this information. [5] Six months after Villarreal obtained the officer’s name, the Department charged her with the Penal Code violation.[6]

After Villarreal’s release on bail, prosecutors dropped the charges following her successful habeas corpus petition.[7] Subsequently, Villarreal sued the City of Laredo, its police department, and numerous officers in federal district court for unlawful interference with her constitutional rights, most notably her “First Amendment rights as a citizen journalist.”[8]

The district court granted summary judgment to the defendants, and Villarreal appealed its decision to the Fifth Circuit. [9] There, a three-judge panel ruled 2-1 in Villarreal’s favor and held that detaining a journalist for simply asking a question was an “obvious violation of the Constitution.”[10] Citing the Supreme Court’s landmark 1971 decision in New York Times Co. v. United States, Judge Ho’s majority opinion rightfully pondered: “If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them?”[11] Nevertheless, the Fifth Circuit decided to convene and rehear the case en banc. [12]  And on January 23, 2024, the Court issued a 9-7 decision in favor of the defendants,[13] and four separate judges issued dissenting opinions. [14]

The Fifth Circuit reasoned that the facts of Villarreal’s case did not meet the standard for bypassing police officers’ qualified immunity for work-related behavior, as Villarreal’s asserted constitutional rights had not been “clearly established” at the time of the alleged violation.[15] There is a logic to the majority’s reasoning. Quoting the Supreme Court’s 2018 decision in Kisela v. Hughes, the court stated that “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”[16] To that end, the Texas Penal Code § 39.06(c) had not yet been ruled unconstitutional, and no case has previously held “that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit.”[17]

However, the Supreme Court’s reasoning in Kisela explicitly referred to officer immunity concerning potential Fourth Amendment violations–an area of the law “where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”[18]

In contrast to situations involving excessive force, police officers interacting with reporters do not have to apply complex legal doctrines to specific, split-second situations. [19]  Rather, officers know that it is a “fundamental personal right” shared by every American.[20] Further, the Laredo officers in this case could not have believed in good faith that have Villarreal’s questions were “sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.[21] Indeed, no Texas jury had ever returned a guilty verdict for a 39.06(c), and the Laredo Police Department had never even charged a person with an offense under the statute despite having likely been asked questions about confidential matters countless times by journalists.[22]

Under the new standard set by the Fifth Circuit, police officers may arrest any journalist who asks a question about information that is not publicly available. [23] While journalists will almost never by found guilty of investigative crimes, the police can be harass them and take their liberties taken away without having to worry about any potential civil liability. [24]

In his dissenting opinion in Villarreal, Judge Willett stated in frank terms that “encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.”[25] In his own dissent, Judge Graves criticized the Court’s opinion for the legal implications it may have on journalism as “the majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share.”[26] Graves also noted his concern over the potential chilling effects stemming from the court’s decision, as “it is not even clear whether the majority’s opinion would allow journalists to request information in good faith from official channels without fear of reprisal.”[27]

Villarreal has already expressed her desire to appeal the case to the Supreme Court[28], which will hopefully grant certiorari to clear up the extent to which qualified immunity overrules First Amendment violations. In the meantime, though, journalists will have to work with uncertainty as to whether they are entitled to their constitutional rights. With the possibility of a legal remedy removed, Texas journalists can only hope that they do not ask the wrong question to the wrong police officer.

[1] See Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024

[2] Id.

[3]Roxanna Asgarian, Appeals court to decide if First Amendment should have protected Laredo’s “big crazy lady” from arrest, The Texas Tribune (Jan. 6, 2023, 5:00 AM), https://www.texastribune.org/2023/01/06/first-amendment-laredo-journalist/.

[4] Tex. Penal Code Ann. § 39.06 (West); see also Id. § 1.07(a)(7) (“’Benefit’ means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.”)

[5] Asgarian, supra note 3.

[6] Id.

[7] Villarreal, supra note 1.

[8] Villarreal v. City of Laredo, Texas, No. 5:19-CV-48, 2020 WL 13517246 (S.D. Tex. May 8, 2020), aff’d in part, rev’d in part and remanded, 17 F.4th 532 (5th Cir. 2021), withdrawn and superseded by 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024), and aff’d in part, rev’d in part and remanded, 44 F.4th 363 (5th Cir. 2022), and reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)).

[9] Villarreal v. City of Laredo, Texas, 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[10] Id.

[11] 44 F.4th 363, 371 (citing New York Times Co. v. U.S., 403 U.S. 713 (1971)).

[12] Villarreal v. City of Laredo, Texas, 52 F.4th 265 (5th Cir. 2022).

[13] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[14] Grayson Clary, In Texas, a disastrous ruling for jounralists’ rights, Reporters Committee (Jan. 29, 2024), https://www.rcfp.org/fifth-circuit-qualified-immunity/.

[15] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (citing Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021))

[16] Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curium).

[17] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)

[18] Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) .

[19] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting).

[20] Branzburg v. Hayes, 408 U.S. 665 (1972).

[21] Brinegar v. United States, 338 U.S. 160, 175 (1949).

[22] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Higginson, J., dissenting).

[23] Billy Binion, This Court Case Could Make It a Crime to Be a Journalist in Texas, Reason (Nov. 4, 2022, 10:03 AM), https://reason.com/2022/11/04/this-court-case-could-make-it-a-crime-to-be-a-journalist-in-texas/.  

[24] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting)

[25] Id. (Willett, J., dissenting).

[26] Id. (Graves, J., dissenting).

[27] Id.

[28] Lagordiloca News LaredoTx, Facebook (Jan. 27, 2024, 4:14PM),

 

 

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16Feb

Online Harassment of Journalists and Uncertain Paths to Recourse Under the Law

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By Mary Catherine Young

Last month, an Azerbaijani journalist was forced to deactivate her social media accounts after receiving sexually explicit and violent threats in response to a piece she wrote about Azerbaijan’s cease-fire with Armenia.[1] Some online users called for the Azerbaijan government to revoke columnist Arzu Geybulla’s citizenship—others called for her death.[2] Days later, an Irish man, Brendan Doolin, was criminally charged for online harassment of four female journalists.[3] The charges came on the heels of a three-year jail sentence rendered in 2019 based on charges for stalking six female writers and journalists online, one of whom reported receiving over 450 messages from Doolin.[4] Online harassment of journalists is palpable on an international scale.

Online harassment of journalists abounds in the United States as well, with females receiving the brunt of the persecution.[5] According to a 2019 survey conducted by the Committee to Protect Journalists, 90 percent of female or gender nonconforming American journalists said that online harassment is “the biggest threat facing journalists today.”[6] Fifty percent of those surveyed reported that they have been threatened online.[7] While online harassment plagues journalists around the world, the legal ramifications of such harassment are far from uniform.[8] Before diving into how the law can protect journalists from this abuse, it is necessary to expound on what online harassment actually looks like in the United States.

In a survey conducted in 2017 by the Pew Research Center, 41 percent of 4,248 American adults reported that they had personally experienced harassing behavior online.[9] The same study found that 66 percent of Americans said that they have witnessed harassment targeted at others.[10] Online harassment, however, takes many shapes.[11] For example, people may experience “doxing” which occurs when one’s personal information is revealed on the internet.[12] Or, they may experience a “technical attack,” which includes harassers hacking an email account or preventing traffic to a particular webpage.[13] Much of online harassment takes the form of “trolling,” which occurs when “a perpetrator seeks to elicit anger, annoyance or other negative emotions, often by posting inflammatory messages.”[14] Trolling can encompass situations in which harassers intend to silence women with sexualized threats.[15]

The consequences of online harassment of internet users can be significant, invoking mental distress and sometimes fear for one’s physical safety.[16] In the context of journalists, however, the implications of harassment commonly affect more than the individual journalist themselves—free flow of information in the media is frequently disrupted due to journalists’ fear of cyberbullying.[17] How legal systems punish those who harass journalists online varies greatly both internationally and domestically.[18]

For example, the United States provides several federal criminal and civil paths to recourse for victims of online harassment, though not specifically geared toward journalists.[19] In terms of criminal law, provisions protecting individuals against cyber-stalking are included in 18 U.S.C. § 2261A, which criminalizes stalking in general.[20] According to this statute, “[w]hoever . . . with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to . . . harass, or intimidate another person, uses . . . any interactive computer service . . . [and] causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person . . .” may be imprisoned.[21] In terms of civil law, plaintiffs may be able to allege defamation or copyright infringement claims.[22] For example, when the harassment takes the form of sharing an individuals’ self-taken photographs without the photographer’s consent, whether they are explicit or not, the circumstances may allow the victim to pursue a claim under the Digital Millennium Copyright Act.[23]

Some states provide their own online harassment criminal laws, though states differ in whether the provisions are included in anti-harassment legislation or in their anti-stalking laws.[24] For example, Alabama,[25] Arizona,[26] and Hawaii[27] all provide for criminal prosecution for cyberbullying in their laws against harassment, whereas Wyoming,[28] California,[29] and North Carolina[30] include anti-online harassment provisions in their laws against stalking.[31] North Carolina’s stalking statute, however, was recently held unconstitutional as applied under the First Amendment after a defendant was charged for posting a slew of Google Plus posts about his bizarre wishes to marry the victim.[32] The North Carolina Court of Appeals decision in Shackelford seems to reflect a distinctly American general reluctance to interfere with individuals’ ability to freely post online out of extreme deference to First Amendment rights.

Other countries have taken more targeted approaches to legally protecting journalists from online harassment.[33] France, in particular, has several laws pertaining to cyberbullying and online harassment in general, and these laws have recently provided relief for journalists.[34] For example, in July 2018, two perpetrators were given six-month suspended prison sentences after targeting a journalist online.[35] The defendants subjected Nadia Daam, a French journalist and radio broadcaster, to months of online harassment after she condemned users of an online platform for harassing feminist activists.[36] Scholars who examine France’s willingness to prosecute perpetrators of online harassment against journalists and non-journalists alike point to the fact that while the country certainly holds freedom of expression in high regard, this freedom is held in check against other rights, including individuals’ right to privacy and “right to human dignity.”[37]

Some call for more rigorous criminalization of online harassment in the United States, particularly against journalists, to reduce the potential for online harassment to create a “crowding-out effect” that prevents actually helpful online speech from being heard.[38] It seems, however, that First Amendment interests may prevent many journalists from finding relief—at least for now.

[1] Aneeta Mathur-Ashton, Campaign of Hate Forces Azeri Journalist Offline, VOA (Jan. 8, 2021), https://www.voanews.com/press-freedom/campaign-hate-forces-azeri-journalist-offline.

[2] Id.

[3] Tom Tuite, Dubliner Charged with Harassing Journalists Remanded in Custody, The Irish Times (Jan. 18, 2021), https://www.irishtimes.com/news/crime-and-law/courts/district-court/dubliner-charged-with-harassing-journalists-remanded-in-custody-1.4461404.

[4] Brion Hoban & Sonya McLean, ‘Internet Troll’ Jailed for Sending Hundreds of Abusive Messages to Six Women, The Journal.ie (Nov. 14, 2019), https://www.thejournal.ie/brendan-doolin-court-case-4892196-Nov2019/.

[5] Lucy Westcott & James W. Foley, Why Newsrooms Need a Solution to End Online Harassment of Reporters, Comm. to Protect Journalists (Sept. 4, 2019), https://cpj.org/2019/09/newsrooms-solution-online-harassment-canada-usa/.

[6] Id.

[7] Id.

[8] See Anya Schiffrin, How to Protect Journalists from Online Harassment, Project Syndicate (July 1, 2020), https://www.project-syndicate.org/commentary/french-laws-tackle-online-abuse-of-journalists-by-anya-schiffrin-2020-07.

[9] Maeve Duggan, Online Harassment in 2017, Pew Rsch. Ctr. (July 11, 2017), https://www.pewresearch.org/internet/2017/07/11/online-harassment-2017/.

[10] Id.

[11] Autumn Slaughter & Elana Newman, Journalists and Online Harassment, Dart Ctr. for Journalism & Trauma (Jan. 14, 2020), https://dartcenter.org/resources/journalists-and-online-harassment.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Duggan, supra note 9.

[17] Law Libr. of Cong., Laws Protecting Journalists from Online Harassment 1 (2019), https://www.loc.gov/law/help/protecting-journalists/compsum.php.

[18] See id. at 3–4; Marlisse Silver Sweeney, What the Law Can (and Can’t) Do About Online Harassment, The Atl. (Nov. 12, 2014), https://www.theatlantic.com/technology/archive/2014/11/what-the-law-can-and-cant-do-about-online-harassment/382638/.

[19] Hollaback!, Online Harassment: A Comparative Policy Analysis for Hollaback! 37 (2016), https://www.ihollaback.org/app/uploads/2016/12/Online-Harassment-Comparative-Policy-Analysis-DLA-Piper-for-Hollaback.pdf.

[20] 18 U.S.C. § 2261A.

[21] § 2261A(2)(b).

[22] Hollaback!, supra note 19, at 38.

[23] Id.; see also 17 U.S.C. §§ 1201–1332.

[24] Hollaback!, supra note 19, at 38–39.

[25] Ala. Code § 13A-11-8.

[26] Ariz. Rev. Stat. Ann. § 13-2916.

[27] Haw. Rev. Stat. § 711-1106.

[28] Wyo. Stat. Ann. § 6-2-506.

[29] Cal. Penal Code § 646.9.

[30] N.C. Gen. Stat. § 14-277.3A.

[31] Hollaback!, supra note 19, at 39 (providing more states that cover online harassment in their penal codes).

[32] State v. Shackelford, 825 S.E.2d 689, 701 (N.C. Ct. App. 2019), https://www.nccourts.gov/documents/appellate-court-opinions/state-v-shackelford. After meeting the victim once at a church service, the defendant promptly made four separate Google Plus posts in which he referenced the victim by name. Id. at 692. In one post, the defendant stated that “God chose [the victim]” to be his “soul mate,” and in a separate post wrote that he “freely chose [the victim] as his wife.” Id. After nearly a year of increasingly invasive posts in which he repeatedly referred to the victim as his wife, defendant was indicted by a grand jury on eight counts of felony stalking. Id. at 693–94.

[33] Law Libr. of Cong., supra note 17, at 1–2.

[34] Id. at 78–83.

[35] Id. at 83.

[36] Id.

[37] Id. at 78.

[38] Schiffrin, supra note 8.

Post Image by Kaur Kristjan on Unsplash.

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