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

NO. 23-1155

IN THE

Supreme Court of the United States

PRISCILLA VILLARREAL,

Petitioner,

v.

ISIDRO R. ALANIZ, IN HIS INDIVIDUAL CAPACITY; ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF YOUNG AMERICA’S FOUNDATION

AND MANHATTAN INSTITUTE AS AMICI

CURIAE IN SUPPORT OF PETITIONER

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

KARIN SWEIGART

MATTHEW SARELSON

DHILLON LAW GROUP

177 Post Street, Suite 700

San Francisco, CA 94108

(415) 433-1700

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT .............................................................. 3

I.

Qualified immunity was not intended to

shelter government actors who violate

clearly established rights. ................................... 3

A. Ms. Villarreal’s free-speech and freepress rights have been clearly

established for decades. ................................ 4

B. This Court should grant certiorari to

make clear that qualified immunity

does not apply to obvious as-applied

violations of the First Amendment. .............. 9

II. This Court should grant certiorari to clarify

the scope of the Nieves exception for

retaliatory arrests and enforce Malley’s

requirement

that

officials

seeking

warrants exercise reasonable professional

judgment. ........................................................... 12

CONCLUSION ......................................................... 15

ii

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635 (1987)...................................... 4–5, 9

Branzburg v. Hayes,

408 U.S. 665 (1972)........................................ 6, 10

Brosseau v. Haugen,

543 U.S. 194 (2004)............................................ 10

Citizens United v. FEC,

558 U.S. 310 (2010).............................................. 5

City of Lakewood v. Plain Dealer Publishing

Company,

486 U.S. 750 (1988).............................................. 7

District of Columbia v. Wesby,

583 U.S. 48 (2018).......................................... 3, 14

First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978).............................................. 6

Florida Star v. B.J.F.,

491 U.S. 524 (1989).......................................... 6–7

Graham v. Connor,

490 U.S. 386 (1989)............................................ 11

Grossman v. City of Portland,

33 F.3d 1200 (9th Cir. 1994) ............................. 14

Hartman v. Moore,

547 U.S. 250 (2006)............................................ 12

iii

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021)........................................ 12

Hope v. Pelzer,

536 U.S. 730 (2002).......................................... 5, 9

Houchins v. KQED, Inc.,

438 U.S. 1 (1978).................................................. 6

Hunter v. Bryant,

502 U.S. 224 (1991).............................................. 3

In re Express-News Corp.,

695 F.2d 807 (5th Cir. 1982) ............................. 10

Kisela v. Hughes,

584 U.S. 100 (2018).................................... 4–5, 10

Landmark Communications, Inc. v. Virginia,

435 U.S. 829 (1978).............................................. 7

Lozman v. City of Riviera Beach,

585 U.S. 87 (2018)........................................ 11, 13

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).............................................. 8

Malley v. Briggs,

475 U.S. 335 (1986)...................................... 14–15

Near v. Minnesota ex rel. Olson,

283 U.S. 697 (1931).............................................. 5

Nieves v. Bartlett,

587 U.S. 391 (2019)................................ 12–13, 15

iv

Pearson v. Callahan,

555 U.S. 223 (2009).............................................. 3

Pell v. Procunier,

417 U.S. 817 (1974).......................................... 6–7

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980).............................................. 6

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021)........................................ 4, 9–10

Roska ex rel. Roska v. Peterson,

328 F.3d 1230 (10th Cir. 2003).......................... 14

Sause v. Bauer,

585 U.S. 957 (2018)........................................ 8, 10

Sause v. Bauer,

859 F.3d 1270 (10th Cir. 2017)............................ 8

Smith v. Daily Mail Publishing Company,

443 U.S. 97 (1979)............................................ 6–7

Tanzin v. Tanvir,

592 U.S. 43 (2020)................................................ 4

Taylor v. Riojas,

592 U.S. 7 (2020).............................................. 5, 9

Villarreal v. City of Laredo,

94 F.4th 374 (5th Cir. 2024) ...........7, 9–11, 13–15

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council,

425 U.S. 748 (1976).............................................. 7

v

White v. Pauly,

580 U.S. 73 (2017).......................................... 4, 10

Young America’s Foundation v. Kaler,

14 F.4th 879 (8th Cir. 2021) ................................ 1

Young America’s Foundation v. Kaler,

482 F. Supp. 3d 829 (D. Minn. 2020) .................. 1

Ziglar v. Abbasi,

582 U.S. 120 (2017).............................................. 4

Other Authorities

4 William Blackstone, Commentaries ....................... 5

1

INTEREST OF AMICI CURIAE 1

Young America’s Foundation (“YAF”) is a national nonprofit organization committed to ensuring that

increasing numbers of young Americans understand

and are inspired by the ideas of individual freedom, a

strong national defense, free enterprise, and traditional values. YAF’s National Journalism Center

trains budding journalists to be truth-seekers who are

ethical and bold in exercising their First Amendment

rights.

YAF leads the Conservative Movement on

campuses throughout the country by sponsoring

campus lectures and other activities, which often

results in conflict with university leaders who

disagree with YAF’s messages and ideas. Often, those

conflicts result in First Amendment litigation in

which qualified immunity plays a major role. E.g.,

Young America’s Found. v. Kaler, 482 F. Supp. 3d 829,

856–66 (D. Minn. 2020), vacated by Young America’s

Found. v. Kaler, 14 F.4th 879 (8th Cir. 2021). YAF has

a significant interest in ensuring that officials who

commit obvious violations of the First Amendment do

not obtain qualified immunity.

YAF’s strong interest in this case is magnified by

its National Journalism Center. Over the last 45

years, the Center has trained over 2,250 journalists to

combat bias in the mainstream media. YAF also has

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

and no person other than amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Counsel were timely notified of this brief

as required by Supreme Court Rule 37.2.

2

a significant interest in protecting those journalists’

First Amendment rights.

The Manhattan Institute for Policy Research is a

nonpartisan public policy research foundation whose

mission is to develop and disseminate new ideas that

foster greater economic choice and individual

responsibility. To that end, it has historically

sponsored scholarship supporting the rule of law and

opposing government overreach, including in the

marketplace of ideas.

Amici file this brief to emphasize that, regardless

of where anyone stands on the larger debate over

qualified immunity, this doctrine was never intended

to shield government officials who violate clear-cut

First Amendment rights.

3

SUMMARY OF THE ARGUMENT

Qualified immunity should not be used to shield

plainly unconstitutional behavior from redress. This

Court has never required a factually analogous case

to overcome the defense of qualified immunity, and

the en banc Fifth Circuit’s requirement of such in this

case is dramatically out of step with this Court and

lower courts’ precedents.

Journalists and citizens’ First Amendment right

to ask questions of their government officials have

been clearly established for over 50 years. It was

plainly unconstitutional for Defendants to attempt to

bar Ms. Villarreal from using standard journalistic

techniques to uncover and report news. This Court

should grant certiorari to clarify that qualified

immunity does not allow a free pass for government

officials to flagrantly flout established constitutional

rights just because no one has committed the same

egregious constitutional violation before.

ARGUMENT

I.

Qualified immunity was not intended to

shelter government actors who violate

clearly established rights.

Qualified immunity doctrine requires a plaintiff

to prove that the defendant infringed a legal principle

that was “clearly established” at the time the alleged

violative conduct occurred. Pearson v. Callahan, 555

U.S. 223, 231 (2009). A legal principle is clearly

established when it has “a sufficiently clear foundation in then-existing precedent” and qualifies as

“‘settled law.’” District of Columbia v. Wesby, 583 U.S.

48, 63 (2018) (quoting Hunter v. Bryant, 502 U.S. 224,

228 (1991) (per curiam)). If reasonable officials in the

4

same position would “have known” or “predicted” that

their actions were unlawful, the law is clearly

established and qualified immunity does not apply.

Ziglar v. Abbasi, 582 U.S. 120, 152 (2017) (emphasis

added). “There is no doubt that damages claims have

always been available under § 1983 for clearly

established violations of the First Amendment.”

Tanzin v. Tanvir, 592 U.S. 43, 50 (2020).

This Court’s qualified immunity precedent has

never required a plaintiff to prove that “the very

action in question has previously been held unlawful.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Quite the opposite, this Court has held repeatedly

that a plaintiff need not provide “‘a case directly on

point’” to prove a clearly established right. RivasVillegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per

curiam) (quoting White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam)). Cases which discuss

constitutional rights “at a high level of generality” can

still “‘clearly establish’ [a legal right], even without a

body of relevant case law” providing guidance. Id. at

6 (citation omitted). In other words, “general statements of the law” may still “giv[e] fair and clear

warning to officers” that their conduct violates a

plaintiff’s constitutional rights. Kisela v. Hughes, 584

U.S. 100, 105 (2018) (per curiam) (quoting White, 580

U.S. at 79).

A. Ms. Villarreal’s free-speech and freepress rights have been clearly established for decades.

This Court’s precedent “makes clear that officials

can still be on notice that their conduct violates

established law even in novel factual circumstances.”

5

Hope v. Pelzer, 536 U.S. 730, 741 (2002); accord, e.g.,

Taylor v. Riojas, 592 U.S. 7, 9 (2020) (per curiam).

“[T]he very action in question” need not be the subject

of a court decision for a right to be clearly established.

Anderson, 483 U.S. at 640. So long as “[t]he contours

of the right [are] sufficiently clear,” then government

officials have been sufficiently put on notice that their

conduct violates a clearly established legal principle,

no matter how novel the situation may be. Ibid. Under

this flexible standard, there is no “requirement that

previous cases be ‘fundamentally similar.’” Hope, 536

U.S. at 741.

Ms. Villarreal’s First Amendment rights were

obvious at the time of her arrest. Free-speech and

free-press rights have remained largely consistent

throughout our nation’s history due to their

foundation in English common law. See Near v.

Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931)

(“Every freeman has an undoubted right to lay what

sentiments he pleases before the public; to forbid this,

is to destroy the freedom of the press ….” (quoting 4

William Blackstone, Commentaries *151, *152)). By

nature, these rights are not as abstract or case specific

as the Fourth Amendment’s “reasonableness”

standard, the main focus of courts’ qualifiedimmunity decisions. E.g., Rivas-Villegas, 595 U.S. at

5–6; Kisela, 584 U.S. at 104.

This case fits squarely in that long tradition.

There is no question the First Amendment protects

the “right of citizens to inquire, to hear, to speak, and

to use information.” Citizens United v. FEC, 558 U.S.

310, 339 (2010). These rights extend to “news

gathering,” which “qualif[ies] for First Amendment

protection” to prevent “freedom of the press” from

6

being “eviscerated.” Branzburg v. Hayes, 408 U.S.

665, 681 (1972); accord Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 576 (1980). Together, the First

Amendment’s text and this Court’s decisions made

four legal principles abundantly clear at the time of

Ms. Villarreal’s arrest.

First, the First Amendment protects “routine

newspaper reporting techniques,” such as asking

questions of individuals—including government

officials—to gather information from willing sources

for publication. Smith v. Daily Mail Publ’g Co., 443

U.S. 97, 103 (1979); accord Fla. Star v. B.J.F., 491

U.S. 524, 538 (1989). That means journalists are “free

to seek out” and request information from “public

officials[ ] and [government] personnel,” including

police officers. Houchins v. KQED, Inc., 438 U.S. 1, 15

(1978) (plurality opinion); accord id. at 32 (Stevens,

J., dissenting) (positing even greater constitutional

“protection for the acquisition of information about

the operation of public institutions”).

Second, journalists’ “use of confidential sources …

is not forbidden or restricted.” Branzburg, 408 U.S. at

681. Reporters are “free to seek out sources of

information not available to members of the general

public.” Pell v. Procunier, 417 U.S. 817, 834 (1974).

They are not limited to official channels. Indeed, “[a]

free press cannot be made to rely solely upon the

sufferance of government to supply it with

information.” Smith, 443 U.S. at 104; accord First

Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978)

(government cannot “limit[ ] the stock of information

from which members of the public may draw”).

7

Third, it makes no difference that reporters may

derive financial benefit from breaking news.

Journalists’ “[s]peech … is protected even though it is

carried in a form that is ‘sold’ for profit.” Va. State Bd.

of Pharmacy v. Va. Citizens Consumer Council, 425

U.S. 748, 761 (1976). The same is true of books,

newspapers, and journals. “[T]he degree of First

Amendment protection is not diminished” whether

“speech is sold” or “given away.” City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 756 n.5 (1988).

Last, government has ample tools to prevent

leaks. But if those measures fail, it generally cannot

punish journalists for seeking, receiving, or publishing information. Fla. Star, 491 U.S. at 533–34; Smith,

443 U.S. at 103–04; Landmark Commc’ns, Inc. v.

Virginia, 435 U.S. 829, 837 & n.10 (1978). Few

government interests will outweigh journalists’ right

to speak and the public’s right to receive “information

and ideas [that] are published.” Pell, 417 U.S. at 832.

The government’s remedy is to punish the leaker—

not the journalist. Fla. Star, 491 U.S. at 534–35;

Landmark, 435 U.S. at 837.

The Fifth Circuit en banc majority ignored these

First Amendment pillars. It allowed city officials to

punish Ms. Villarreal for engaging in routine reporting techniques, Villarreal v. City of Laredo, 94 F.4th

374, 388 (5th Cir. 2024) (en banc); going outside of

official police channels, id. at 381–82, 385, 388;

potentially deriving meager financial rewards from

her reporting, id. at 388; and targeting a citizen

journalist who merely asked questions, rather than a

police officer who leaked information, id. at 388–89.

All of this violates the First Amendment’s text and

this Court’s established precedent. Because officials

8

had clear notice that arresting Ms. Villarreal under a

moribund law because they disliked her speech

violates the First Amendment, qualified immunity

does not apply—especially at the pleadings stage

where courts must accept Ms. Villarreal’s alleged

facts and draw all inferences in her favor. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 561 (1992).

The situation in Sause v. Bauer, 585 U.S. 957

(2018) (per curiam), was broadly similar and this

Court’s ruling instructive. There, two police officers

allegedly responded to a noise complaint, entered Ms.

Sause’s apartment, then engaged “in a course of

strange and abusive conduct,” including ordering her

to stop kneeling and praying. Id. at 958. The Tenth

Circuit said qualified immunity applied because Ms.

Sause could not “identify a single case in which [the

Tenth Circuit], or any other court for that matter, has

found a First Amendment violation based on a factual

scenario even remotely resembling the one we

encounter here.” Sause v. Bauer, 859 F.3d 1270, 1275

(10th Cir. 2017).

This Court reversed and remanded because

“[t]here can be no doubt that the First Amendment

protects the right to pray.” Sause, 585 U.S. at 959.

This was so even though the plaintiff pointed to no

particular case that applied that right-to-pray rule to

substantially analogous facts as those alleged in

Sause.

The same principle applies here. No reasonable

official would doubt Ms. Villarreal’s constitutional

right to engage in routine journalism concerning local

police matters. Just as in Sause, this Court should

reverse and remand so that Ms. Villarreal may

9

engage in discovery to substantiate her First and

Fourteenth Amendment claims.

B. This Court should grant certiorari to

make clear that qualified immunity does

not apply to obvious as-applied violations of the First Amendment.

Some applications of laws are so “obvious[ly]”

unconstitutional, Rivas-Villegas, 595 U.S. at 6, or

“egregious,” Taylor, 592 U.S. at 9, that qualified

immunity dissolves without a factually analogous

case on the books. Often this principle is associated

with Hope v. Pelzer, 536 U.S. at 741, where this Court

said “a general constitutional rule already identified

in the decisional law may apply with obvious clarity

to the specific conduct in question.” Accord, e.g.,

Anderson, 483 U.S. at 640 (rejecting the notion “that

an official action is protected by qualified immunity

unless the very action in question has previously been

held unlawful”).

The Fifth Circuit en banc majority avoided this

conclusion by throwing out the obviousness exception

to “normal” qualified-immunity rules in the freespeech and free-exercise context. Villarreal, 94 F.4th

at 395. It refused to accept that “the ‘obvious’ violation

exception applies broadly to arrests that may impinge

on First Amendment rights.” Id. at 392. Obviousness,

the majority said, is “no more than a possible

exception,” ibid., or one narrowly confined to “Eighth

Amendment cases,” id. at 395.

This dispelling of the obviousness exception is

mistaken. Eighth Amendment precedent has its

oddities but qualified immunity isn’t one of them.

10

Nothing in Hope or Taylor suggests that the exception

applies only to claims of cruel and unusual

punishment. Nor does confining the obviousness

exception to that narrow context make sense.

Freedoms of speech, press, and religion are among our

proudest liberties, not

“second-class right[s].”

Villarreal, 94 F.4th at 413 (Ho, J., dissenting).

What’s more, the Court has often raised the

obviousness exception in Fourth Amendment cases.

E.g., Rivas-Villegas, 595 U.S. at 6; Kisela, 584 U.S. at

105; White, 580 U.S. at 79–80; Brosseau v. Haugen,

543 U.S. 194, 199–200 (2004). If the exception were

an Eighth Amendment peculiarity, that wouldn’t be

true. Sause also refutes any suggestion that the

obviousness exception doesn’t apply to free-exercise

claims. 585 U.S. at 959. Yet the Fifth Circuit en banc

majority said, quite inexplicably, that Sause proves

the opposite. Villarreal, 94 F.4th at 395.

The en banc majority also drew an arbitrary line

between inquiring about information and publishing

that information. Id. at 396. But the “freedom to

speak is of little value if there is nothing to say.” In re

Express-News Corp., 695 F.2d 807, 808 (5th Cir.

1982); accord Branzburg, 408 U.S. at 681–82. If a

journalist cannot be penalized for publishing nonpublic information, then she cannot be punished for

requesting that information in the first place.

Freedom of speech and of the press cannot

“meaningfully exist unless journalists are allowed to

seek non-public information from the government.”

Villarreal, 94 F.4th at 399 (Graves, J., dissenting).

Indeed, the en banc majority’s ruling seemingly

leaves even journalists in Texas who “request

11

information in good faith from official channels” in

“fear of reprisal.” Id. at 401 (Graves, J., dissenting).

Critically, the en banc majority’s attempt to

obliterate the obviousness exception in the First

Amendment context isn’t merely wrong, it directly

conflicts with rulings by nine other circuits. Id. at 413

(Ho, J., dissenting) (citing contradictory rulings by

the First, Second, Third, Fourth, Sixth, Ninth, Tenth,

and Eleventh Circuits). Only this Court can resolve

that conflict and protect First Amendment rights

from egregious invasion not only in Ms. Villarreal’s

case, but across the board in Louisiana, Mississippi,

and Texas—home to over 37 million people.

Officials’ care and deliberation in plotting to jail

Ms. Villarreal deserve special mention. Qualifiedimmunity jurisprudence is typically conceived as

protecting law enforcement officers making splitsecond decisions in the heat of the moment. E.g.,

Lozman v. City of Riviera Beach, 585 U.S. 87, 98

(2018) (“In deciding whether to arrest, police officers

often make split-second judgments.”); Graham v.

Connor, 490 U.S. 386, 397 (1989) (explaining law

enforcement are often involved in “circumstances that

are tense, uncertain, and rapidly evolving”). But there

was no exigency nor split-second decision here.

Rather, Defendants spent six months formulating a

scheme to punish Ms. Villareal for her speech,

choosing to leverage a never-before-used provision to

achieve their unconstitutional ends. No justification

exists for granting officials “who have time to make

calculated choices about … [their] unconstitutional”

actions “the same [qualified-immunity] protection as

a police officer who makes a split-second decision to

use force in a dangerous setting.” Hoggard v. Rhodes,

12

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

respecting the denial of certiorari).

According to the complaint, this was a calculated,

premeditated attack on Ms. Villareal’s citizen

reporting. Yet, the Fifth Circuit’s qualified-immunity

analysis ignored this salient point. Finding qualified

immunity for officials here—where their scheme flies

in the face of decades of constitutional jurisprudence—runs counter to the stated purposes of

qualified-immunity doctrine. Left undisturbed, the

Fifth Circuit’s ruling provides dangerous license for

government actors to flagrantly violate the

Constitution without recourse, even against the most

established rights, simply because they invoke a novel

factual situation never before specifically addressed

by the courts.

II. This Court should grant certiorari to clarify

the scope of the Nieves exception for

retaliatory arrests and enforce Malley’s

requirement that officials seeking warrants

exercise reasonable professional judgment.

“‘[A]s a general matter the First Amendment

prohibits government officials from subjecting an

individual to retaliatory actions’ for engaging in

protected speech.” Nieves v. Bartlett, 587 U.S. 391,

398 (2019) (quoting Hartman v. Moore, 547 U.S. 250,

256 (2006). In Nieves, this Court identified the proper

test for analyzing speech-retaliation claims involving

arrests. Generally, “[t]he plaintiff pressing a retaliatory arrest claim must plead and prove the absence of

probable cause for the arrest.” Id. at 402. But Nieves

created an exception for situations where “officers

have probable cause to make arrests, but typically

13

exercise their discretion not to do so.” Id. at 406

(emphasis added). This exception seeks to address the

“risk that some police officers may exploit the arrest

power as a means of suppressing speech.” Lozman,

585 U.S. at 99. Accordingly, a plaintiff like Ms.

Villarreal is exempt from showing a lack of probable

cause when she “presents objective evidence that

[s]he was arrested when otherwise similarly situated

individuals not engaged in the same sort of protected

speech had not been.” Nieves, 587 U.S. at 407.

Ms. Villarreal’s allegations fit squarely within the

Nieves exception. As the Fifth Circuit en banc

majority acknowledged, there have been no other

prosecutions for the violation of Texas Penal Code

§ 39.06(c) in the statute’s 23 years of existence.

Villareal, 94 F.4th at 398. Not one. In fact, “[a]t no

point in their district or appellate court briefing did

Defendants contest Villarreal’s allegation that law

enforcement in Laredo and Webb County, or indeed,

any prosecutor anywhere in Texas, had pursued

anyone besides her under § 39.06(c).” Id. at 404

(Higginson, J., dissenting). That is “objective

evidence” that Ms. Villarreal was arrested when other

journalists were not. Nieves, 587 U.S. at 407. Because

officials exploited their arrest power to suppress Ms.

Villarreal’s speech, the presence, or absence, of

probable cause is irrelevant.

Yet the en banc majority essentially wrote the

Nieves exception out of existence, requiring Ms.

Villarreal to specifically “identify”—at the pleadings

stage—“‘similarly situated individuals’ who … were

not prosecuted.” Villarreal, 94 F.4th at 398. Nieves’

objective-evidence rule doesn’t require such a cutand-dried showing, and this Court should grant

14

certiorari to say so. Otherwise, officials may levy

moribund state or local laws to arrest journalists for

newsgathering in blatant violation of the First

Amendment and get off scot-free. Contra Grossman v.

City of Portland, 33 F.3d 1200, 1209 n.19 (9th Cir.

1994); Roska ex rel. Roska v. Peterson, 328 F.3d 1230,

1253 (10th Cir. 2003) (qualified immunity doesn’t

protect officials who rely on moribund laws). Ms.

Villarreal’s case is an egregious example, as the Fifth

Circuit “countenance[d], with neither inquiry nor

discovery, dismissal of an American citizenjournalist’s complaint that her newsgathering led to

arrest for something that Texas courts have

confirmed is not a crime.” Villarreal, 94 F.4th at 406

(Higginson, J., dissenting).

Additionally, probable cause for arrest is based on

“the standpoint of an objectively reasonable [official]”

and “the totality of the circumstances.” Wesby, 583

U.S. at 56–57 (quotation omitted). No reasonable

official would conclude there was probable cause to

arrest Ms. Villarreal here. Officials arranging the

“appl[ication] for [a] warrant” must “minimize th[e]

danger [of mistaken approval] by exercising

reasonable professional judgment.” Malley v. Briggs,

475 U.S. 335, 346 (1986). The Fifth Circuit en banc

majority cited Malley repeatedly but ignored this key

requirement. Villarreal, 94 F.4th at 385, 393–94.

The magistrate who found probable cause to

arrest Ms. Villarreal was entirely unaware that

officials were using § 39.06(c)—a statute never

enforced—as a pretext to chill and punish her speech.

But those seeking the warrants are a different story.

No official “of reasonable competence” would have

schemed to retaliate against Ms. Villarreal for her

journalism, let alone perfected that scheme by

15

“request[ing] the warrant[s].” Malley, 475 U.S. at 346

n.9. That is doubly true when supporting affidavits

failed to fully establish Ms. Villarreal’s alleged

crimes. Villarreal, 94 F.4th at 411 (Ho, J., dissenting)

(“[N]owhere in their arrest warrant affidavits or

charging documents do Defendants ever mention

subsection (d) or its requirements—let alone identify

which prohibition on disclosure Villarreal violated.”).

The en banc majority was not just “insufficiently

protective” but outright dismissive of Ms. Villarreal’s

“First Amendment rights.” Nieves, 587 U.S. at 407;

e.g., Villarreal, 94 F.4th at 391–93. This Court’s review is urgently needed to clarify the Nieves exception

and enforce Malley’s requirement that officials

seeking warrants exercise reasonable judgment.

CONCLUSION

Whatever anyone thinks about qualified

immunity, the doctrine was never intended to shield

government officials who infringe on obvious First

Amendment rights. For all the above reasons and

those presented by the petitioner, the Court should

grant the petition.

Respectfully submitted,

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

16

KARIN M. SWEIGART

MATTHEW SARELSON

DHILLON LAW GROUP

177 Post Street, Suite 700

San Francisco, CA 94108

(415) 433-1700

MAY 2024

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000