The majority opinion, authored by Judge Edith Jones, appointed by former President Ronald Regan, finds that local officials were reasonable when they used an obscure Texas law to arrest Gordiloca and thereby criminalize a wide range of what has been considered basic accountability journalism. The ruling applies in Texas, Louisiana, and Mississippi.
“Any law enforcement agency basically has a green light right now to go out and arrest and threaten or detain journalists who publish documents that are leaked from the government,” said attorney Daxton “Chip” Stewart, a media law professor at Texas Christian University, in an interview about the ruling. “And … if that journalist spends a night in jail, they don’t have a remedy and can’t sue for a civil rights violation.”
The court sidestepped addressing the Texas law’s constitutionality, and Jones couched her findings on whether Laredo officials knowingly violated Villarreal’s civil rights when they arrested her in 2017.
If the Supreme Court allows this to stand, freedom of the press would instantly become nonexistent. That is not hyperbole. The court would be essentially telling the press that they are only allowed to share what the government has decided they could share, and attempting to report anything else would leave them open to criminal prosecution and no legal recourse against law enforcement and government overreach.
Even if no explicit threat is made, would you, as a journalist, be willing to put your career, your freedom, and your family security on the line to report something that didn’t come from official government sources? Would you want to report on something regarding a government official who could literally decide whether you remain a free person? Would you literally want to take on even a state government on your own? Because that is what every journalist would have to decide any time they report on something that didn’t come from an official government source. Anything else would subject them to retribution from government officials who would use the fact that they got the information from an informant during dinner at Applebees rather than the corrupt officials they were investigating in the first place as evidence of a crime.
And even under the “current” rules regarding this ruling as it stands, what is to stop Texas (or any of the other affected states) from having someone like Rachel Maddow or Anderson Cooper arrested for reporting on something on CNN or MSNBC? What would stop a future President Trump from using this ruling as justification for the dismantling of the press that he has already promised he would try to do?
And what I’m afraid of is that one of the basic foundations of our country – freedom of the press – is now in the hands of six people who have already gone on record saying they want to dismantle the basic foundations of our country. Pardon me if that makes me just a wee bit nervous.
I sure do wish more people had seen this coming from a mile away in 2016 but here we are.
Edit to add some more context from the article
In a blow to First Amendment advocates, a majority of the judges on the U.S. Fifth Circuit Court of Appeals decided Tuesday … to endorse an expansive view of government power that permits police to arrest reporters for seeking basic information through backchannels.
That’s both horrifying and unsurprising. Unfortunately I think the voting public will have to experience authoritarianism to be motivated enough to do anything about it. And by then it likely will be too late.
Wait is this Russia or USA?
With Republicans in charge, there’s not much difference
The headline and article are misleading. Here’s a better article from Reuters.
The criminal case against Villarreal was dismissed on constitutional grounds in 2018. The recent ruling is a qualified immunity question: should the police officers have known that applying the law in the way they did was unconstitutional? That ruling does not criminalize anything or even set a particularly strong precedent; if police were to attempt to use the same law again in the same unconstitutional way after the 2018 ruling, there would be a much stronger case that they should have known better.
The original article says:
The court sidestepped addressing the Texas law’s constitutionality
which is misleading because a state court already ruled that applying the law the way it was in this case is unconstitutional, and that ruling was not being appealed in the recent civil case.
This is in fact, a much better article and (horrifying texan political hellscape aside) the key except is copied here for convenience:
Begin quote: The Texas statute she was charged under made it a crime to solicit non-public information from a government official with an intent to obtain a benefit. Prosecutors alleged she used the information to amass more Facebook followers.
A Texas state court judge in 2018 tossed the charges, finding the law unconstitutionally vague, and she sued in 2019. A judge ruled the officers and prosecutors were entitled to qualified immunity, but a 2-1 panel reversed in 2021.
But in Tuesday’s ruling, U.S. Circuit Judge Edith Jones, an appointee of Republican former President Ronald Reagan, said law enforcement officers were not required to predict whether the Texas law at issue was constitutional before arresting her.
Looking at the case narrowly, it’s usually reasonable for police to assume laws are constitutional unless a court has ruled otherwise. In this case, however the totality of the circumstances makes it clear that the police were trying to misuse the law to persecute a journalist who was annoying them.
The police should get sued for that, and like nearly half the fifth circuit judges, I disagree with the court’s ruling.
Something’s going to have to give and soon. Police need to carry individual malpractice insurance, where gross negligence results in personal liability, and blanket qualified immunity as a whole needs to go.
No other institution has built a self-licking ice cream cone like law enforcement. The US health care system certainly tries, but at least it doesn’t have a monopoly on the use of force. Until the incentives change, there’s no future where civil relations recover. You just can’t remove liability for bad faith abuse of power and expect an organization to self-police its behavior.
Crushingly ironic that the “don’t tread on me” crowd are the loudest proponents of the wholesale gutting of freedom of the press/speech…
