Amicus Curiae Brief — Priscilla Villarreal, Petitioner v. Isidro R. Alaniz, et al.

Supreme Court briefMay 3, 2024

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No. 23-1155

IN THE

Supreme Court of the United States

————

PRISCILLA VILLARREAL,

Petitioner,

THE CITY OF LAREDO, TEXAS, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION IN SUPPORT OF

PETITIONER

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

May 3, 2024

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICUS CURIAE .......................................1

SUMMARY OF ARGUMENT .............................................. 2

ARGUMENT.................................................................... 4

QUALIFIED IMMUNITY SHOULD NOT SHIELD

CONSTITUTIONAL INFRINGEMENT IN SLOW-MOVING

FIRST AMENDMENT CASES. ....................................4

II. THE FIRST AMENDMENT IS THE FIRST MOVER

BEFORE EXCEPTIONS ARE APPLIED. ..................... 10

Make No Law is the Baseline. Private

Individuals do Not Bear the Burden of Proving

They Are Not Criminals for Speaking. .......... 12

Prior Restraints Are Presumed to be

Unconstitutional. ............................................ 15

Publishing is a Right, Not a Benefit to be

Granted or Withdrawn by the State. ............. 18

Under the Civil Rights Act, Officials “Shall be

Liable.” ............................................................ 20

III. APPLICATION OF QUALIFIED IMMUNITY

EXACERBATES THE PROBLEM OF

UNCONSTITUTIONAL SPEECH LAWS...................... 22

CONCLUSION ............................................................... 24

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ........................................... 19

Anderson v. Creighton,

483 U.S. 635 (1987) ............................................. 4

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ............................................. 17

Bartnicki v. Vopper,

532 U.S. 514 (2001) ........................................... 21

Brown v. Ent. Merchants Ass'n,

564 U.S. 786 (2011) ........................................... 21

Citizens United v. Federal Election Comm’n,

558 U.S. 310 (2010) ........................................... 14

Commonwealth v. Blanding,

20 Mass. 304 (1825) .......................................... 15

Florida Star v. B.J.F.,

491 U.S. 524 (1989) ........................................... 22

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) ........................................... 16

iii

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ......................................... 6, 8

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ......................................... 9

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................... 22

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) ........................................... 16

Illinois v. Krull,

480 U.S. 340 (1987) ............................................. 8

Imbler v. Pachtman,

424 U.S. 409 (1976) ......................................... 6, 8

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ........................................... 19

Landmark Commc'ns, Inc. v. Virginia,

435 U.S. 829 (1978) ........................................... 22

Little v. Barreme,

6 U.S. 170 (1804) ................................................. 7

Lovell v. City of Griffin, Ga.,

303 U.S. 444 (1938) ........................................... 22

Malley v. Briggs,

475 U.S. 335 (1986) ........................................... 21

Martin v. City of Struthers, Ohio,

319 U.S. 141 (1943) ........................................... 18

Minneapolis Star & Trib. Co. v. Minnesota

Com'r of Revenue,

460 U.S. 575 (1983) ........................................... 22

NAACP v. Button,

371 U.S. 415 (1963) ........................................... 19

Near v. State of Minnesota ex rel. Olson,

283 U.S. 697 (1931) ..................................... 15, 17

New York Times Co. v. United States,

403 U.S. 713 (1971) ............................... 16, 17, 20

Oklahoma Publishing Co. v. Oklahoma

County District Court,

430 U.S. 308 (1977) ........................................... 22

Organization for a Better Austin v. Keefe,

402 U.S. 415 (1971) ........................................... 17

Pearson v. Callahan,

555 U.S. 223 (2009) ....................................... 4, 22

Pierson v. Ray,

386 U.S. 547 (1967) ......................................... 5, 6

Procunier v. Navarette,

434 U.S. 555 (1978) ............................................. 8

Rosenberger v. Rector & Visitors of Univ. of

Va.,

515 U.S. 819 (1995) ........................................... 12

Siegert v. Gilley,

500 U.S. 226 (1991) ............................................. 4

Smith v. Daily Mail Publishing Co.,

443 U.S. 97 (1979) ............................................. 22

Tenney v. Brandhove,

341 U.S. 367 (1951) ............................................. 5

United States v. Batchelder,

442 U.S. 114 (1979) ........................................... 11

Villarreal v. City of Laredo, Texas,

44 F.4th 363 (5th Cir. 2022) ....................... 3, 4, 9

Villarreal v. City of Laredo, Texas,

94 F.4th 374 (5th Cir. 2024)

................................... 3, 10, 12, 13, 14, 16, 20, 21

Virginia Pharmacy Board v. Virginia

Citizens Consumer Council,

425 U.S. 748 (1976) ........................................... 10

Zadeh v. Robinson,

928 F.3d 457 (2019)........................................... 23

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ..................................... 5, 6

Constitutions

U.S. Const. Amend I

1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20,

22, 23, 24

Statutes

42 U.S.C. § 1983

..................................... 2, 3, 5, 6, 8, 20, 21, 22, 23

Tex. Gov’t Code § 552.001 ...................................... 13

Tex. Gov’t Code § 552.108 (c) ................................. 13

Tex. Penal Code Ch. 39 .......................................... 14

Tex. Penal Code § 39.06(b) ..................................... 11

Tex. Penal Code § 39.06(c) ............................... 11, 21

Other Authorities

Peggy M. Baker, The Plymouth Colony

Patent: setting the stage, Pilgrim Society

& Pilgrim Hall Museum (2007),

available at:

https://pilgrimhall.org/pdf/The_Plymout

h_Colony_Patent.pdf ......................................... 19

vii

Steven Gow Calabresi, James Lindgren,

Hannah M. Begley, Kathryn L. Dore &

Sarah E. Agudo, Individual Rights

Under State Constitutions In 2018: What

Rights Are Deeply Rooted In A ModernDay Consensus Of The States?, Notre

Dame Law Review, Vol. 94:1 p. 73 (2018) ........ 18

1 Thomas M. Cooley, A Treatise on The Law

of Torts or The Wrongs Which Arise

Independently of Contract 326 (John

Lewis ed., 3d ed. 1906) ........................................ 5

Aaron L. Neilson & Christopher J. Walker,

A Qualified Defense of Qualified

Immunity, 93 Notre Dame L. Rev. 1853,

n.57 (2018) ........................................................... 7

The New York Times Corporate Governance

available at:

https://www.nytco.com/investors/corpora

te-governance/ ................................................... 18

INTEREST OF AMICUS CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because protection of the

freedoms of expression and association, guaranteed by

the First Amendment, is essential for an open and

diverse society.

1 No counsel for a party authored this brief in whole or in part

and no person other than amicus or its counsel made any

monetary contributions to fund the preparation or submission of

this brief. AFPF filed greater than ten days in advance of the

deadline to file the brief, which serves as notice to counsel.

SUMMARY OF ARGUMENT

The use of qualified immunity to shield

government employees from liability for intentional

and slow-moving infringement of First Amendment

rights creates a moral hazard that is at odds with the

Constitution and The Civil Rights Act. The First

Amendment prohibits government from making laws

that abridge speech and the press. Section 1983

creates a cause of action for violations of civil rights

under color of state law. But these protections come to

nothing where state actors may purposefully infringe

First Amendment rights and then rely on prolix state

law to trigger qualified immunity, claiming they did

not know any better. The more obscure the state law,

the less likely it is that a case has been decided

prohibiting its application to a certain set of facts. The

result is that clear and generally applicable

protections—the First Amendment and §1983—are

supplanted by idiosyncratic state law.

Qualified immunity undercuts the Constitution

and the Civil Rights Act by allowing state law to

shield unconstitutional action by the state officials—

the exact bad behavior § 1983 was designed to combat.

This is especially true where the violation was

intentional and opportunities to get the law right were

abundant.

This is just such a case, involving a citizen

journalist who asked a government employee to

confirm independently-sourced information and then

published it. Six months later, having taken time to

think it over, local officials arrested her under an anticorruption statute they had not used as the basis for

prosecution in its over two-decade history.2 But no

step in this journalist’s saga is unprotected. No step

presents a borderline question whether the First

Amendment applies. Indeed, that sequence of events

is so squarely within the bounds of the First

Amendment that much of it is protected by two

clauses: Speech and Press.

One would be justified in thinking the legal

standard for silencing a journalist and arresting her

for reporting double-sourced facts would be high and

that she could vindicate the violation of her civil

rights. Not here. Instead, she was burdened with

navigating various state law exceptions to First

Amendment protection just to keep her complaint

from being dismissed under qualified immunity. She

succeeded in her first visit to the Fifth Circuit. But on

en banc review, the court accepted that state law

conditions on the First Amendment could be used to

grant qualified immunity. Thus, obvious and clear

speech and press rights were forced to give way to

obscure and overbroad application of state laws

addressing fraud and corruption. Doing so narrowed

First Amendment protections for journalists and

negated the purpose of §1983—vindication of civil

rights that have been infringed under color of state

law.

To the extent qualified immunity serves any

purpose, this is not it.

2 Villarreal v. City of Laredo, Texas, 44 F.4th 363, 368 (5th Cir.)

(“Villarreal I”)., reh’g en banc granted, opinion vacated, 52 F.4th

265 (5th Cir. 2022), and superseded on reh’g en banc, 94 F.4th

374 (5th Cir. 2024) (“Villarreal II”).

ARGUMENT

QUALIFIED IMMUNITY SHOULD NOT SHIELD

CONSTITUTIONAL INFRINGEMENT IN SLOWMOVING FIRST AMENDMENT CASES.

In cases of alleged infringement of First

Amendment rights, particularly where, as here, a

slow-moving chain of events unfurls over a multimonth period, qualified immunity should be applied

rarely, if at all. This is because, as the panel opinion

correctly stated, “[t]he crucial question . . . is whether

‘a reasonable official would understand that what he

is doing violates [a constitutional] right.’” Villarreal I,

44 F.4th at 369 (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). In cases implicating bedrock

First Amendment activity, a legal doctrine that

excuses—even incentivizes—ignorance is a poor fit.

Qualified immunity allegedly serves two purposes:

to ensure fair notice for the government employee

before personal liability can be imposed—consistent

with the constitutional due process requirement of

fair notice;3 and to promote official action recognized

under the common law as necessary to society by

protecting officers from lawsuits that may discourage

them from doing their jobs or accepting employment

that would expose them to lawsuits.4 The societal

3 “Qualified immunity operates to ensure that before they are

subjected to suit, officers are on notice their conduct is unlawful”

Pearson v. Callahan, 555 U.S. 223, 244 (2009) (cleaned up).

4 Siegert v. Gilley, 500 U.S. 226, 232 (1991) (“One of the purposes

of immunity, absolute or qualified, is to spare a defendant not

only unwarranted liability, but unwarranted demands

customarily imposed upon those defending a long drawn out

lawsuit.”).

justification for promoting action was explained by

Cooley’s Treatise on Torts:

It is for the best interests of society that

those who offend against the laws shall

be promptly punished, and that any

citizen who has good reason to believe

that the law has been violated shall have

the right to cause the arrest of the

offender. For the purpose of protecting

him in so doing, it is the established rule,

that if he have reasonable grounds for

his belief, and act thereon in good faith

in causing the arrest, he shall not be

subjected to damages merely because the

accused is not convicted. This rule is

founded upon grounds of public policy, in

order to encourage the exposure of

crime[.]

1 Thomas M. Cooley, A Treatise on The Law of Torts

or The Wrongs Which Arise Independently of Contract

326 (John Lewis ed., 3d ed. 1906) (citation omitted).

Certain types of official action have long received

essentially plenary immunity. For example,

“legislators and judges are absolutely immune from

liability under § 1983 for their official acts because

that immunity was well established at common law in

1871.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1870 (2017)

(Thomas, J. concurring in part and concurring in the

judgment) (citing Tenney v. Brandhove, 341 U.S. 367,

372–76 (1951) (legislators); Pierson v. Ray, 386 U.S.

547, 553–55 (1967) (judges)). The availability or

degree of immunity for other categories of official

action has varied across time and type of activity,

attempting to accommodate vigorous official action

within a reasonable standard of care. In the area of

policing, the Court long ago “concluded that police

officers could assert ‘the defense of good faith and

probable cause’ against the claim for an

unconstitutional arrest because that defense was

available against the analogous torts of ‘false arrest

and imprisonment’ at common law.” Id. at 1871

(Thomas, J. concurring in part and concurring in the

judgment) (citing Pierson, 386 U.S. at 557). Thus, the

Court has recognized police “under § 1983 [have] a

‘good faith and probable cause’ defense coextensive

with their defense to false arrest actions at common

law.” Imbler v. Pachtman, 424 U.S. 409 at 418–19

(1976). While the Court has largely abandoned this

approach in favor of the Harlow “objective,” “clearly

established” test, see Harlow v. Fitzgerald, 457 U.S.

800 (1982); Ziglar, 137 S. Ct. at 1866–67 (applying the

objective test in § 1983 cases), it is instructive to

understand the goals qualified immunity has

traditionally served.

With the near elimination of the good faith test,

fair notice has become largely dispositive. But the

contours of fair notice have long roots, implicating due

process, and turning on the availability or ambiguity

of positive law, the chronology and factual similarity

of clarifying court opinions, and the amount of time

the state actor has to evaluate the constitutionality of

the proposed course of action.

Regarding due process and the need for clarity in

settled law, there is a distinction between unclear or

erroneous laws for which a government actor could

not reasonably be deemed to have fair notice and acts

that are so clearly unconstitutional or otherwise

unlawful that a government actor should be expected

to know better. On the one hand, “imagine an officer

engages in conduct that has been explicitly blessed by

the Supreme Court but nonetheless is sued for it, and

in the course of that litigation, the Supreme Court

overrules its prior decision. Presumably imposing

liability on that officer would offend principles of fair

notice.” Aaron L. Neilson & Christopher J. Walker, A

Qualified Defense of Qualified Immunity, 93 Notre

Dame L. Rev. 1853, n.57 (2018) (cleaned up). In that

case, it would be unreasonable to hold the officer to a

higher standard of knowledge than the Court itself.

Notably, this standard is more lenient on government

officials than the standard applied to private litigants

who are granted no “good faith” exception from

liability when the Court recognizes a novel application

of a statute.5

On the other hand, when the law is clear, the

government actor is bound by it and may be liable

even in the face of contrary commands from a

superior. For example, in a case from the early days of

the Republic, the Court held a ship captain

responsible for the unlawful seizure of another ship

even though he relied on the President’s

interpretation of the underlying statutory authority.

Little v. Barreme, 6 U.S. 170, 170 (1804). It was not

enough in Little that the error in law could be traced

directly to the President’s order because that order

could not effect a change in the underlying law. The

captain of the ship was responsible for complying with

the law regardless of the President’s command. See id.

at 179 (holding “instructions cannot change the

nature of the transaction, or legalize an act which

5 See, e,g., Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 662

(2020).

without those instructions would have been a plain

trespass”). This approach, refusing to shield reliance

on a patently invalid law has stood the test of time.

See, e.g., Illinois v. Krull, 480 U.S. 340, 355 (1987) (“A

statute cannot support objectively reasonable reliance

if, in passing the statute, the legislature wholly

abandoned its responsibility to enact constitutional

laws. Nor can a law enforcement officer be said to have

acted in good-faith reliance upon a statute if its

provisions are such that a reasonable officer should

have known that the statute was unconstitutional.”).

Whether

interpreted

under

the

original

understanding of § 1983, such that immunity applies

if available at common law, see Imbler, 424 U.S. at

421, or under the “clearly established” standard

where government officials are immune unless their

conduct violates clearly established statutory or

constitutional rights of which a reasonable person

would have known, see Procunier v. Navarette, 434

U.S. 555, 565 (1978), fair notice that speech and the

press are protected is readily satisfied because claims

of First Amendment infringement are among the most

frequently discussed and hotly asserted constitutional

rights. It is thus reasonable to expect that a public

official

with

even

the

most

rudimentary

understanding of our constitutional system would be

well aware that government attempts to punish

speech and the press should be met with a jaundiced

eye and—at a minimum—pause and seek guidance if

the lawful course of action is unclear. As the Court

held in Harlow, “[w]here an official could be expected

to know that certain conduct would violate statutory

or constitutional rights, he should be made to

hesitate.” 457 U.S. at 815–19. The alternative to this

approach would be to promote ignorance of the

constitution as a shield against liability.

Moreover, in cases like this one, in which six

months elapsed between a journalist’s questioning of

the police officer and their finding a reason to arrest

her, fair notice that law enforcement was heading

down an unconstitutional path would be easy to meet.

This holds particularly true where, as here, the action

taken was extreme: “It should be obvious to any

reasonable police officer that locking up a journalist

for asking a question violates the First Amendment,”

Villarreal I, 44 F.4th at 373. Six months would be

more than enough time to satisfy any lingering doubt

that arresting her may be unconstitutional. But even

in more subtle cases, the slow-moving nature of many

First Amendment conflicts raises doubt whether

qualified immunity should ever apply. If so, it should

be the rarity not the rule.

This issue has relevance well beyond the policing

situation and is particularly acute in settings where

an unconstitutional policy can be readily changed to

moot a plaintiff’s case either through narrow policy

modifications that elude the plaintiff’s specific fact

pattern or through flip-flopping policies to wriggle

past plaintiffs whose standing is based on a temporary

status. This type of gamesmanship is familiar, for

example, on university campuses where college

administrators set policies that infringe the speech

rights of students and faculty despite involving a

slow-moving policy-making process that is amenable

to legal consultation. Justice Thomas acknowledged

the issue in the denial of certiorari in Hoggard v.

Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J.,

statement respecting denial of cert.) (“But why should

university officers, who have time to make calculated

choices about enacting or enforcing unconstitutional

policies, receive the same protection as a police officer

who makes a split-second decision to use force in a

dangerous setting?”).

Accordingly, assuming the continuation of the

doctrine of qualified immunity, its application in First

Amendment cases should be rare, and, if applied at

all, should be informed by the amount of time

available to the state actor to ensure the proposed

course of action is constitutional.

II.

THE FIRST AMENDMENT IS THE FIRST MOVER

BEFORE EXCEPTIONS ARE APPLIED.

The First Amendment interests in this case are

straightforward and should have been vindicated

easily. Prior restraints, such as those applied here, are

inherently suspect and any content-based exceptions

to broad First Amendment protection must satisfy

strict scrutiny.

Although the Constitution is superior to state law,

here state law prevailed. The rationale for elevating

state law over speech and press rights was the

apparently novel idea that the “perks available to

citizen journalists” arising from publication are a

“benefit” that can displace constitutional exercise.

Villarreal II, 94 F.4th at 388. But the blessings of

liberty cannot be stripped away by labeling them

“benefits”. Nor can the established expectation that

one may profit from exercising constitutional rights be

deemed notice that criminal liability could result

unless the exercise has been pre-blessed by the state.

This case takes the opposite approach, reading a

law that sounds in fraud and self-dealing to prohibit

constitutionally protected activity unless the accused

proves she received no “benefit”6,7 from the exercise of

her First Amendment rights. The Texas law, which

prohibits obtaining protected information and using

that information for personal gain, could be

constitutional in applications that do not implicate

speech. For example, prohibiting backdoor access to

public employees’ banking information to protect

against identity theft or blackmail would likely pass

constitutional muster. But here, broadly reading the

statute to reach millrun speech and press activity gets

the Constitution-to-state law relationship backwards.

First Amendment protection must be the default

unless the government can satisfy (usually) strict

scrutiny. Moreover, even with lawful restraints, due

process requires criminal law to provide notice that a

person of ordinary intelligence could understand. 8

Neither requirement is satisfied when law

enforcement officers invoke prolix interpretations of

law—or invent self-serving interpretations—that

contravene black letter First Amendment law in ways

6 Texas Penal Code § 39.06(c) (“(c)

A person commits an offense

if, with intent to obtain a benefit or with intent to harm or

defraud another, he solicits or receives from a public servant

information that: (1) the public servant has access to by means

of his office or employment; and (2) has not been made public.”).

Tex. Penal Code § 39.06(b) (“A public servant commits an

offense if with intent to obtain a benefit or with intent to harm

or defraud another, he discloses or uses information for a

nongovernmental purpose that: (1) he has access to by means of

his office or employment; and (2) has not been made public.”).

8 “A criminal statute is therefore invalid if it fails to give a person

of ordinary intelligence fair notice that his contemplated conduct

is forbidden.” United States v. Batchelder, 442 U.S. 114, 123

(1979) (cleaned up).

that could not be anticipated by a person of ordinary

intelligence—and would chill speech and press rights.

Moreover, applying qualified immunity to

encourage narrow application of the First

Amendment and broad imposition of criminal liability

on speech and press activity creates a moral hazard in

which complexity and ambiguity creates greater

leeway for law enforcement to violate civil rights.

Make No Law is the Baseline.

Private Individuals do Not Bear the

Burden of Proving They Are Not

Criminals for Speaking.

Applying a criminal statute to First Amendment

activity and claiming people can avoid criminal

liability by simply complying, gets the law backwards.

The court below asserted that Ms. Villarreal “could

have followed Texas law.” Villarreal II, 94 F.4th at

381. This contention is overly optimistic and

misunderstands the relationship between a speaker

and the state. It may be true that speakers could avoid

criminal liability for statutory speech violations if

they simply stopped speaking; but that is not how the

First Amendment works. Instead, the burden falls

squarely on the government to rebut the presumption

that discrimination against speech due to its message

is unconstitutional. See Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995).

Moreover, the notion that Ms. Villarreal “could

have” followed Texas law requires a leap of faith that

the minefield of presumptions at play here could be

navigated without special knowledge. To comply, she

would, for example, have had to recognize a legally

significant difference between an “LPD Officer” and

an “LPD information officer” before asking for

confirmation of basic facts9—assuming she was even

aware of the existence of two distinct titles. She would

also have had to recognize that: 1) age, name, and

employment information of a deceased person is

protected despite a statutory presumption in favor of

broad public disclosure;10 2) independently-sourced

information could be transmogrified into secret

“official information”11 because law enforcement also

knows it; 3) there is such a thing as an “official news

9 Villarreal II, 94 F.4th at 382.

See generally Tex. Gov’t Code §552.001 (“(a) Under the

fundamental philosophy of the American constitutional form of

representative government that adheres to the principle that

government is the servant and not the master of the people, it is

the policy of this state that each person is entitled, unless

otherwise expressly provided by law, at all times to complete

information about the affairs of government and the official acts

of public officials and employees. The people, in delegating

authority, do not give their public servants the right to decide

what is good for the people to know and what is not good for them

to know. The people insist on remaining informed so that they

may retain control over the instruments they have created. The

provisions of this chapter shall be liberally construed to

implement this policy. (b) This chapter shall be liberally

construed in favor of granting a request for information.). See

also Tex. Gov’t Code § 552.108 (c) (“This section does not except

from the requirements of Section 552.021 information that is

basic information about an arrested person, an arrest, or a crime.

A governmental body shall promptly release basic information

responsive to a request made under this chapter unless the

governmental body seeks to withhold the information as

provided by another provision of this chapter, and regardless of

whether the governmental body requests an attorney general

decision under Subchapter G regarding other information

subject to the request.”).

11 94 F.4th at 382.

media;”12 4) public interest in her reporting could be

an illicit “benefit;”13 5) a statutory definition could

limit whether blessings may lawfully flow from the

exercise of constitutional rights;14 and 6) information

about real world events could be redefined as

“information about the affairs of government” at the

discretion of government.15

Even assuming, against the backdrop of nearlyubiquitous First Amendment protection of speech and

the press, a person must self-censor to resolve a

conflict between the Constitution and state law, the

idea that anyone could be expected to understand and

comply with eccentric applications of fraud law to

attempts to confirm information is fanciful—and not

required before First Amendment protection applies.

“The First Amendment does not permit laws that

force speakers to . . . seek declaratory rulings before

discussing the most salient political issues of our day.

Prolix laws chill speech for the same reason that

vague laws chill speech: People of common

intelligence must necessarily guess at the law’s

meaning and differ as to its application.” Citizens

United v. Federal Election Comm’n, 558 U.S. 310, 324

(2010) (cleaned up). Application of criminal law from

a chapter titled “Abuse of Office”16 against a private

speaker without any associated non-speech-based

offense is so far outside the norm of constitutional

expectations that it gets the law backwards.

12 94 F.4th at 383.

13 Id. at 384.

14 Id. at 386.

15 Id. at 386.

16 Texas Penal Code Ch. 39 Abuse of Office

The baseline understanding for journalists and for

law enforcement must be that the First Amendment

protects journalistic endeavors such as investigation

and publication.

Prior Restraints Are Presumed to be

Unconstitutional.

The prohibition against prior restraints on

publishing is neither new nor obscure. It “has been

generally, if not universally, considered that it is the

chief purpose of the guaranty [of liberty of the press]

to prevent previous restraints upon publication.” Near

v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713

(1931). The elimination of such restraints was one of

the rationales motivating broad press freedom at the

founding. As James Madison explained, “This security

of the freedom of the press requires that it should be

exempt not only from previous restraint by the

Executive, as in Great Britain, but from legislative

restraint also.” Id. at 14 (quoting Report on the

Virginia Resolutions, Madison’s Works, vol. IV, p.

543.). See also Commonwealth v. Blanding, 20 Mass.

304, 313–14 (1825) (“it is well understood, and

received as a commentary on this provision for the

liberty of the press, that it was intended to prevent all

such previous restraints upon publications as had

been practised [sic] by other governments”).

“As early as 1644, John Milton, in an ‘Appeal for

the Liberty of Unlicensed Printing,’ assailed an act of

Parliament which had just been passed providing for

censorship of the press previous to publication. He

vigorously defended the right of every man to make

public his honest views ‘without previous censure’;

and declared the impossibility of finding any man

base enough to accept the office of censor and at the

same time good enough to be allowed to perform its

duties.” Grosjean v. Am. Press Co., 297 U.S. 233, 245–

46 (1936). This interpretation is as valid now as it was

then. Houston Cmty. Coll. Sys. v. Wilson, 595 U.S.

468, 474 (2022).

As applied here, the Texas law is an

unconstitutional prior restraint by: 1) preventing a

reporter from confirming her information—thus

chilling the publication of independently discovered

information due to uncertainty; or 2) preventing a

reporter from publishing information that has been

corroborated by the government by putting the label

“official information” on it even if the information was

already known to the reporter. Nevertheless, on

appeal, the court found no established law holding

“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.” Villarreal II, 94 F.4th at 395. Of course, as

the opinion explains, it is not simply the “solicitation

and receipt” of the information that makes the law

applicable to Ms. Villarreal, but rather the so-called

“personal benefit” of publishing it. Punishing

publication places this case squarely within New York

Times Co. v. United States, 403 U.S. 713 (1971) (per

curium) (“Pentagon Papers”) because the First

Amendment protects against government efforts to

prohibit publication.

In the Pentagon Papers, the government sought to

prevent the New York Times and the Washington

Post from publishing the contents of a classified study

entitled History of U.S. Decision-Making Process on

Viet Nam Policy. 403 U.S. at 713–14. The Court’s

opinion was succinct. “‘Any system of prior restraints

of expression comes to this Court bearing a heavy

presumption against its constitutional validity.’” 403

U.S. at 714 (citing Bantam Books, Inc. v. Sullivan, 372

U.S. 58, 70 (1963); see Near, 283 U.S. at 713. The

“Government ‘thus carries a heavy burden of showing

justification for the imposition of such a restraint.’”

403 U.S. at 714 (citing Organization for a Better

Austin v. Keefe, 402 U.S. 415, 419 (1971)). Accordingly,

the Court held the attempt to prevent publication

unconstitutional. Id. at 713.

Justice Black, in his concurrence, went a step

further, admonishing the administration:

Now, for the first time in the 182 years

since the founding of the Republic, the

federal courts are asked to hold that the

First Amendment does not mean what it

says, but rather means that the

Government can halt the publication of

current news of vital importance to the

people of this country.

In seeking injunctions against these

newspapers and in its presentation to

the Court, the Executive Branch seems

to have forgotten the essential purpose

and history of the First Amendment.

Id. at 715.

The simplicity of the analysis, coupled with

decades of precedent demonstrating the presumption

against prior restraints, and the vehemence of the

concurrences make clear that taking action against a

publisher—even in cases of confidential government

information—is not a close call. It is, in fact, well

established.

Publishing is a Right, Not a Benefit

to be Granted or Withdrawn by the

State.

All fifty states guarantee freedom of the press,

writing, and/or publishing.17 Most include a caveat

that the individual may be held responsible for abuse

of that right or even specific limitations for libel or

obscenity.18 But none provide for weakening the right

to publish because the publisher is successful in

developing an audience.19

The rights do not turn on whether the publisher

benefits from publication. It is commonplace, for

example, for publishing activity to be for-profit. 20 Forprofit endeavors enjoy the same constitutional

protection as publication for free.

Nor can a change of labels be used to evade the

First Amendment. Attempts to do so are sadly not

uncommon, but this Court has steadfastly resisted the

17 Steven Gow Calabresi, James Lindgren, Hannah M. Begley,

Kathryn L. Dore & Sarah E. Agudo, Individual Rights Under

State Constitutions In 2018: What Rights Are Deeply Rooted In A

Modern-Day Consensus Of The States?, Notre Dame Law Review,

Vol. 94:1 p. 73 (2018)

18 Id. at 74–75.

Indeed, the greater the audience interest, the greater the

magnitude of listeners’ rights. Martin v. City of Struthers, Ohio,

319 U.S. 141, 143 (1943) (The freedoms of speech and press

“embraces the right to distribute literature, . . . and necessarily

protects the right to receive it.”).

20 The New York Times, for example, is a for profit entity. See,

New York Times Corporate Governance information, available

at: https://www.nytco.com/investors/corporate-governance/

attempt. See, e.g., NAACP v. Button, 371 U.S. 415, 429

(1963) (“a State cannot foreclose the exercise of

constitutional rights by mere labels.”). Indeed, the

Pilgrims themselves were both a for-profit enterprise

and aiming to exercise what would later become First

Amendment freedoms.21 And recently, the Court

rebuffed Colorado’s attempt to use public

accommodations law to compel speech. 303 Creative

LLC v. Elenis, 600 U.S. 570 (2023).

Thus, the protection of expressive works provided

by the First Amendment does not turn on whether the

speaker or publisher receives a commercial benefit.

Rather, in examining speech-based offerings, such

as movies, the Court has separated the business

aspects: “production, distribution, and exhibition . . .

conducted for private profit,” from the speech element

of the movie itself. Joseph Burstyn, Inc. v. Wilson, 343

U.S. 495, 501 (1952). Moreover, for movies, like

“books, newspapers, and magazines,” being

“published and sold for profit does not prevent them

from being a form of expression whose liberty is

safeguarded by the First Amendment.” Id.

The question of whether commercial trappings can

be used to excuse regulation of speech has been before

this Court many times. Virginia Pharmacy Board v.

Virginia Citizens Consumer Council, 425 U.S. 748,

761 (1976) (collecting cases illustrating that “speech

does not lose its First Amendment protection because

money is spent to project it”). Time and again, the

21 See generally Peggy M. Baker, The Plymouth Colony Patent:

setting the stage, Pilgrim Society & Pilgrim Hall Museum (2007),

available

at:

https://pilgrimhall.org/pdf/The_Plymouth_Colony_Patent.pdf.

Court has focused on the speech element and turned

aside attempts to evade the First Amendment. Thus,

whether “Villarreal sought to capitalize on others’

tragedies to propel her reputation and career,”

Villarreal II, 94 F.4th at 381, has no legal significance.

Indeed, more traditional journalists do this every day

at for-profit news outlets.

Moreover, like the other provisions of the First

Amendment, it should come as no surprise and make

no legal difference that Villarreal may have enjoyed a

psychic benefit from exercising her First Amendment

rights. Like exercising any right of conscience, the

rights of speech and the press may be assumed to

generate joy, satisfaction, or vindication, among other

psychic benefits.

Finally, expansive receipt of information by the

public is wholly consistent with the purpose of the

Press Clause—to inform the people of information

necessary to self-government. “The press was to serve

the governed, not the governors. The Government’s

power to censor the press was abolished so that the

press would remain forever free to censure the

Government.” 403 U.S. at 717 (Black, J. concurring).

It thus has no legal significance to assert that a

publisher’s audience has grown as a result of a

publication; and Freedom of the Press cannot be

abridged on the basis that only unsuccessful reporters

are protected.

Under the Civil Rights Act, Officials

“Shall be Liable.”

Section 1983 should be applied based on its text—

which makes liability mandatory. To wit,

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws,

shall be liable to the party injured in an

action at law, suit in equity, or other

proper proceeding for redress,

42 U.S. Code § 1983 (bold added). A plain reading of

the text would lead to no qualified immunity at all.

Here, it is undisputed the officers acted under color

of law. Villarreal II, 94 F.4th at 383 (“The judge, . . .,

issued two warrants for Villarreal’s arrest for misuse

of official information in violation of section 39.06(c) of

the Texas Penal Code.”).22 And they applied the law in

response to Villarreal’s reporting. Id. Given the vast

array of cases protecting publication,23 as well as the

22 In Malley v. Briggs, the Court rejected petitioner's argument

that an officer is “shielded from damages liability because the act

of applying for a warrant is per se objectively reasonable,

provided that the officer believes that the facts alleged in his

affidavit are true.” 475 U.S. 335, 345 (1986). Instead, the Court’s

“good-faith inquiry is confined to the objectively ascertainable

question whether a reasonably well-trained officer would have

known that the search was illegal despite the magistrate's

authorization.” Id.

23 See, e.g., Brown v. Ent. Merchants Ass’n, 564 U.S. 786 (2011)

(sale of “violent video games” to minors); Bartnicki v. Vopper, 532

U.S. 514, 517 (2001) (publication of communication illegally

intercepted by third party); Florida Star v. B.J.F., 491 U.S. 524,

straightforward text of the First Amendment,

qualified immunity should not be applied to evade

constitutional rights.

III.

APPLICATION OF QUALIFIED IMMUNITY

EXACERBATES

THE

PROBLEM

UNCONSTITUTIONAL SPEECH LAWS.

Because qualified immunity is immunity from

suit, not just a defense to liability, Pearson, 555 U.S.

at 231, it should not be applied when “a general

constitutional rule already identified in the decisional

law may apply with obvious clarity to the specific

conduct in question, even though the very action in

question has [not] previously been held unlawful.’”

Hope v. Pelzer,536 U.S. 730, 740 (2002) (alteration in

original). This approach can be the critical difference

between vindicating First Amendment rights and a

pernicious cycle in which repeated dismissal of First

526 (1989) (printing, publishing, or broadcasting the name of the

victim of a sexual offense); Minneapolis Star & Trib. Co. v.

Minnesota Comm’r of Revenue, 460 U.S. 575, 592 (1983)

(imposing tax that targets the press); Smith v. Daily Mail

Publishing Co., 443 U.S. 97, 99 (1979) (criminally forbidding

newspapers to publish, without written juvenile court approval,

the name of any youth charged); Landmark Commc’ns, Inc. v.

Virginia, 435 U.S. 829 (1978) (imposing criminal punishment of

news media, for publishing truthful information regarding

confidential proceedings of Judicial Inquiry and Review

Commission); Oklahoma Publishing Co. v. Oklahoma County

District Court, 430 U.S. 308 (1977) (enjoining the media from

publishing the name or photograph of an 11-year-old boy in

connection with a juvenile proceeding that reporters had

attended); Lovell v. City of Griffin, Ga., 303 U.S. 444, 450 (1938)

(distributing ‘circulars, handbooks, advertising, or literature of

any kind.’).

Amendment cases results in

precedential value of those cases.

losing

potential

The anti-precedent trap was well summarized by

Judge Willett in his dissent in Zadeh v. Robinson:

To rebut the officials’ qualified-immunity

defense and get to trial, [plaintiff] must

plead facts showing that the alleged

misconduct violated clearly established

law. . . . Controlling authority must

explicitly adopt the principle; or else

there must be a robust consensus of

cases of persuasive authority. Mere

implication from precedent doesn’t

suffice. . . . But owing to a legal deus ex

machina—the clearly established prong

of qualified-immunity analysis—the

violation eludes vindication. . . . Section

1983 meets Catch-22. Plaintiffs must

produce precedent even as fewer courts

are producing precedent. Important

constitutional questions go unanswered

precisely because no one’s answered

them before. Courts then rely on that

judicial silence to conclude there's no

equivalent case on the books. No

precedent = no clearly established law =

no liability. An Escherian Stairwell.

Heads government wins, tails plaintiff

loses.

928 F.3d 457, 474, 477, 478–80 (2019) (Willett, J.,

concurring in part, dissenting in part).

So too where the god in the machine is helped

along by complex laws to avoid a perfect match with

existing precedent, thus ensuring that future

violators may be preserved from “knowing” their

actions violate First Amendment rights.

This Court should not allow expansive application

of the qualified immunity doctrine to shield these

state officials from accountability for clear

constitutional violations in this way.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

Respectfully submitted,