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

Supreme Court briefMay 24, 2024

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No. 23-1155

IN THE

Supreme Court of the United States

PRISCILLA VILLARREAL,

Petitioner,

ISIDRO R. ALANIZ, IN HIS INDIVIDUAL CAPACITY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS

AND 21 NEWS ORGANIZATIONS IN SUPPORT

OF PETITIONER

Paul Watler

JACKSON WALKER LLP

2323 Ross Avenue

Suite 600

Dallas, TX 75201

Bruce D. Brown

Counsel of Record

Katie Townsend

Gabe Rottman

Grayson Clary

Emily Hockett

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1156 15th St. NW, Suite 1020

Washington, D.C. 20005

bruce.brown@rcfp.org

(202) 795-9300

Counsel for Amici Curiae

TABLE OF CONTENTS

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

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

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

ARGUMENT ................................................................. 5

The Constitution’s most basic guarantee of a

free press is the right to ask questions of

government officials. ........................................ 5

II. In the lower courts, qualified immunity

systematically undermines the

Constitution’s safeguards for a free press. .. 12

CONCLUSION............................................................ 17

TABLE OF AUTHORITIES

Cases

ABC, Inc. v. Wells,

669 F. Supp. 2d 483 (D.N.J. 2009) ......................... 11

Allen v. Beirich,

No. CCB-18-3781, 2019 WL 5962676

(D. Md. Nov. 13, 2019),

aff’d in part, rev’d in part on other grounds,

No. 19-2419, 2021 WL 2911736

(4th Cir. July 12, 2021) ........................................... 10

Bartnicki v. Vopper,

532 U.S. 514 (2001) ................................................... 8

Branzburg v. Hayes,

408 U.S. 665 (1972) ................................................. 14

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ................................................. 13

CBS Inc. v. Smith,

681 F. Supp. 794 (S.D. Fla. 1988) .......................... 11

Citizens United v. FEC,

558 U.S. 310 (2010) ..................................... 2, 4, 6, 13

City of Houston v. Hill,

482 U.S. 451 (1987) ................................................. 15

Crocker v. Beatty,

995 F.3d 1232 (11th Cir. 2021) .............................. 15

Daily Herald Co. v. Munro,

838 F.2d 380 (9th Cir. 1988) .................................. 11

iii

Democratic Nat’l Comm. v. Russian Fed’n,

392 F. Supp. 3d 410 (S.D.N.Y. 2019) ..................... 10

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) ................................................... 3

Florida Star v. B.J.F.,

491 U.S. 524 (1989) ................................................... 8

Garrison v. Louisiana,

379 U.S. 64 (1964) ................................................. 4, 6

Gericke v. Begin,

753 F.3d 1 (1st Cir. 2014) ....................................... 13

Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) ..................................... 14

In re Express-News Corp.,

695 F.2d 807 (5th Cir. 1982) .................................. 11

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ............................................. 4, 13

McCoy v. Alamu,

141 S. Ct. 1364 (2021) ............................................... 4

Miami Herald Publ'g Co. v. Tornillo,

418 U.S. 241 (1974) ................................................... 5

Mills v. Alabama,

384 U.S. 214 (1966) ................................................... 3

Molina v. City of St. Louis,

59 F.4th 334 (8th Cir. 2023) ................................... 14

Molina v. City of St. Louis,

65 F.4th 994 (8th Cir. 2023) ................................... 14

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................... 6, 8

N.Y. Times Co. v. United States,

403 U.S. 713 (1971) ..................................... 2, 8, 9, 11

NAACP v. Button,

371 U.S. 415 (1963) ................................................. 15

Neb. Press Ass’n v. Stuart,

427 U.S. 539 (1976) ................................................. 15

Nicholas v. Bratton,

376 F. Supp. 3d 232 (S.D.N.Y. 2019) ..................... 13

Nicholson v. McClatchy Newspapers,

177 Cal. App. 3d 509 (1986) ..................................... 9

Quraishi v. St. Charles Cnty.,

986 F.3d 831 (8th Cir. 2021) ............................ 13, 14

S.H.A.R.K. v. Metro Parks Serving Summit

Cnty.,

499 F.3d 553 (6th Cir. 2007) .............................. 5, 12

Smith v. Daily Mail Publ’g Co.,

443 U.S. 97 (1979) .................. 2, 4–6, 8–9, 12–13, 16

Taylor v. Riojas,

592 U.S. 7 (2020) ....................................................... 4

Trump v. Trump,

79 Misc. 3d. 866

(N.Y. Sup. Ct. N.Y. Cnty. 2023) ............................. 11

United States v. Sherman,

581 F.2d 1358 (9th Cir. 1978) ................................ 11

Statutes

Sedition Act of 1798, 1 Stat. 596 ................................. 7

Tex. Penal Code § 39.06 ............................................... 3

Other Authorities

1 S. Exec. J. 178 (4th Cong., Spec. Sess. (1795)) ........ 2

Alexander M. Bickel, The Morality of Consent

(1975).......................................................................... 3

Betty Medsger, Remembering an Earlier Time

When a Theft Unmasked Government

Surveillance, Wash. Post (Jan. 10, 2014),

https://perma.cc/T85B-3UT6 .................................. 10

Bill Carter, Tobacco Company Sues Former

Executive Over CBS Interview,

N.Y. Times (Nov. 22, 1995),

https://perma.cc/JA4F-DGQ4 ................................. 10

Bruce D. Brown & Gabe Rottman, Claiming a

‘Computer Crime’ Shouldn’t Give Police a Free

Pass to Raid Newspapers,

L.A. Times (Aug. 31, 2023),

https://perma.cc/F8DS-Z9AP.................................. 16

Dana Kennedy, Chicago-Area Reporter Ticketed

– for Asking Public Employees Questions,

N.Y. Post (Nov. 4, 2023),

https://perma.cc/8VMU-K974................................. 16

Daniel N. Hoffman, Contempt of the United

States: The Political Crime That Wasn’t,

25 Am. J. L. Hist. 343 (1981) ................................... 7

Daniel N. Hoffman, Governmental Secrecy and

the Founding Fathers (1981) ................................... 7

John Carreyrou, Theranos Whistleblower Shook

the Company—and His Family,

Wall St. J. (Nov. 18, 2016),

https://perma.cc/LST9-NP7J .................................. 10

Kevin Rector, Outrage Over Times’ Journalism

Exposes LAPD’s Ignorance of a Free Press,

Experts Say, L.A. Times (July 14, 2023),

https://perma.cc/GDJ2-CF95.................................. 16

Laurie Roberts, Sen. Wendy Rogers Runs to

Court to Avoid a Reporter Armed with . . .

Questions, Ariz. Republic (Apr. 21, 2023),

https://perma.cc/QQ85-9UE4 ................................. 16

Matthew Schafer, That Time the Senate Issued

an Arrest Warrant for a Reporter,

Lessons in History (June 27, 2021),

https://perma.cc/TD47-9ZPG .................................... 8

Pet’rs’ Br.,

Smith v. Daily Mail Publ’g Co., 443 U.S. 97

(1979) (No. 78-482), 1978 WL 223067 ..................... 9

Richard B. Kielbowicz, The Role of News Leaks

in Governance and the Law of Journalists’

Confidentiality, 1795-2005,

43 San Diego L. Rev. 425 (2006) .......................... 2, 7

vii

Ronan Farrow, Harvey Weinstein’s Secret

Settlements, New Yorker (Nov. 21, 2017),

https://perma.cc/J96Z-DNDX ................................. 11

INTEREST OF AMICI CURIAE1

Amici are the Reporters Committee for

Freedom of the Press (“Reporters Committee”),

American Broadcasting Companies, Inc., The Atlantic

Monthly Group LLC, Boston Globe Media Partners,

LLC, BuzzFeed, The Center for Investigative

Reporting (d/b/a Reveal), Dow Jones & Company, Inc.,

Gannett Co., Inc., Hearst Corporation, NBCUniversal

Media, LLC, d/b/a NBC Universal News Group, The

New York Times Company, Newsday LLC, Open

Vallejo, Pro Publica, Inc., Pulitzer Center on Crisis

Reporting, The Seattle Times Company, Sinclair

Broadcast Group, Inc., Slate, TEGNA Inc., Texas

Tribune, Vox Media, LLC, and The Washington Post.

As organizations that exercise and defend the

rights of journalists and news organizations, amici

have a strong interest in defending the First

Amendment’s most basic guarantee: the right to

question government officials.

Pursuant to Supreme Court Rule 37, counsel for amici

curiae state that no party’s counsel authored this brief in whole

or in part; no party or party’s counsel made a monetary

contribution intended to fund the preparation or submission of

this brief; no person other than the amici curiae, their members

or their counsel made a monetary contribution intended to fund

the preparation or submission of this brief; and counsel of record

for all parties were given timely notice of the intent to file this

brief.

SUMMARY OF THE ARGUMENT

Under the First Amendment, “[t]he press was

protected so that it could bare the secrets of

government and inform the people.” N.Y. Times Co.

v. United States, 403 U.S. 713, 717 (1971) (Black, J.,

concurring). The Constitution therefore protects not

just the right to speak but also the right “to inquire,”

Citizens United v. FEC, 558 U.S. 310, 339 (2010),

including through “routine newspaper reporting

techniques,” Smith v. Daily Mail Publ’g Co., 443 U.S.

97, 103 (1979). And no technique has been more

routine or central to newsgathering—from the

Founding through the present day—than pursuing

information about government affairs “simply by

asking” for it. Id. at 99. The very first treaty adopted

under the Constitution was obtained by the press

from Senators who were forbidden by law to disclose

it, and the journalism of the last two-and-a-half

centuries would be unrecognizable without the right

to seek answers from public officials. See Richard B.

Kielbowicz, The Role of News Leaks in Governance

and the Law of Journalists’ Confidentiality, 17952005, 43 San Diego L. Rev. 425, 433 n.28 (2006) (citing

1 S. Exec. J. 178 (4th Cong., Spec. Sess. (1795)).

In an extraordinary departure from those

bedrock First Amendment principles, the en banc U.S.

Court of Appeals for the Fifth Circuit—over the

dissents of Judges Douglas, Elrod, Graves, Higginson,

Ho, Oldham, and Willett, see Pet. App. 42a–100a—

held that a reasonable law enforcement official might

believe they were entitled to jail a reporter who

“solicits or receives from a public servant information

that . . . has not been made public” with the “intent to

obtain a benefit,” Pet. App. 12a. (quoting Tex. Penal

Code § 39.06(c)), where the benefit in question was

“getting a scoop,” Pet. App. 18a. But that supposed

‘offense’ describes the work of every journalist; it

would criminalize nine-tenths of the front page,

“dam[ming] the flow to the press, and through it to the

people, of the most valuable sort of information” about

their government—“not the press release, not the

handout, but the firsthand story based on the candid

talk of a primary news source.” Alexander M. Bickel,

The Morality of Consent 84 (1975). And while the

ruling’s chilling effect on reporters across Texas,

Louisiana, and Mississippi alone warrants this

Court’s review, the Fifth Circuit’s decision is also

characteristic of a broader dysfunction in the way

lower courts approach the question of qualified

immunity when the right to gather news is at stake.

Amici therefore offer two arguments in support

of this Court’s review and reversal. First, no right is

more fundamental to the practice of journalism than

the one the Fifth Circuit declined to recognize: the

right to ask public officials for information. “[T]he

First Amendment goes beyond protection of the press

and the self-expression of individuals to prohibit

government from limiting the stock of information

from which members of the public may draw,” First

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

and “there is practically universal agreement” that

those constitutional safeguards exist “to protect the

free discussion of governmental affairs” in particular,

Mills v. Alabama, 384 U.S. 214, 218–19 (1966). No

surprise, then, that this Court’s cases—along with the

overwhelming weight of persuasive authority from

lower courts—leave no doubt that the First

Amendment protects asking questions of a source.

See Daily Mail Publ’g Co., 443 U.S. at 99. In light of

the “paramount public interest in a free flow of

information to the people concerning public officials,

their servants,” Garrison v. Louisiana, 379 U.S. 64, 77

(1964), the force of that rule is all the more obvious,

where, as here, that source is a government employee,

see Daily Mail Publ’g Co., 443 U.S. at 99 (reporter

lawfully obtained information by interviewing “police”

and “assistant prosecuting attorney”). The Fifth

Circuit’s error on the issue is clear enough that

summary reversal is appropriate. See Taylor v.

Riojas, 592 U.S. 7, 8–9 (2020) (per curiam) (summarily

reversing Fifth Circuit’s grant of qualified immunity

for an “obvious” constitutional violation (citation

omitted)); McCoy v. Alamu, 141 S. Ct. 1364, 1364

(2021) (mem.) (same).

Plenary review is likewise warranted because

the courts of appeals are in clear need of guidance

about the proper approach to qualified immunity

when the right to gather information—as opposed to

the right to speak or publish—is at issue. This Court

has always extended the rights “to inquire, to hear, to

speak, and to use information” the same degree of

protection, Citizens United, 558 U.S. at 339, and

courts need only apply ordinary First Amendment

standards to adequately protect the right to gather

the news, see Joseph Burstyn, Inc. v. Wilson, 343 U.S.

495, 503 (1952) (noting that “the basic principles of

freedom of speech and the press . . . do not vary”). Yet

the circuits have struggled to discern “a clearly

defined framework” for cases that involve

information-gathering rather than expression,

S.H.A.R.K. v. Metro Parks Serving Summit Cnty., 499

F.3d 553, 560 (6th Cir. 2007), leaving “routine

newspaper reporting techniques” vulnerable to official

retaliation that no court would tolerate if any other

First Amendment activity were at issue, Daily Mail

Publ’g Co., 443 U.S. at 103.

The gravity of the Fifth Circuit’s error, together

with the impact that this broader disarray continues

to have on the exercise of fundamental First

Amendment rights, warrants review. As this Court

underlined in Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974), it would be “intolerable”

to defer resolution of “an important question of

freedom of the press” where, as here, “an uneasy and

unsettled constitutional posture . . . could only further

harm the operation of a free press,” id. at 247 n.6.

This Court should grant the Petition to clear away

that chilling uncertainty and to reaffirm the

fundamental proposition that “[a] free press cannot be

made to rely solely upon the sufferance of government

to supply it with information.” Daily Mail Publ’g Co.,

443 U.S. at 104.

ARGUMENT

The Constitution’s most basic guarantee

of a free press is the right to ask questions

of government officials.

Petitioner Priscilla Villarreal was arrested and

detained for “reporting nonpublic information from [a]

backchannel source”: a law enforcement officer who

accurately corroborated the details of a recent suicide

and a traffic accident. Pet. App. 3a. Remarkably, a

slim majority of the Fifth Circuit held that “[n]o case

would have given these officers ‘fair notice’ that their

conduct in arresting Villarreal would run afoul of the

First Amendment.” Pet. App. 38a. That was an

obvious constitutional error, one that places the daily

work of journalists throughout Texas, Mississippi,

and Louisiana in legal jeopardy.

The First

Amendment protects asking sources for information

they may not be authorized to share—the bread-andbutter of newsgathering, and perhaps the single most

“routine newspaper reporting technique[]” in a

reporter’s toolkit. Daily Mail Publ’g Co., 443 U.S. at

103. That right unquestionably includes soliciting

information from government officials in particular,

see id.; if anything, it has special force on that footing

because “speech concerning public affairs is more than

self-expression; it is the essence of self-government.”

Garrison, 379 U.S. at 74–75. The original meaning of

the First Amendment, this Court’s precedent

interpreting it, and the overwhelming weight of

persuasive authority would have made that point

clear to any reasonable officer confronted with these

facts.

To begin with, Petitioner’s rights are clearly

established by the First Amendment “as originally

understood.” Citizens United, 558 U.S. at 353.

Villarreal is far from the first journalist to ask an

individual to share information he or she may have

promised to keep confidential. On the contrary, the

clash over the Sedition Act of 1798 that “first

crystallized a national awareness of the central

meaning of the First Amendment,” N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 273 (1964), was as much a

referendum on the “role of leaks” in reporting about

the government as it was a conflict over the right to

criticize the government, Daniel N. Hoffman,

Governmental Secrecy and the Founding Fathers 200

(1981). There could have been no heated national

debate over the terms of Jay’s Treaty, for instance, if

the Jeffersonian-Republican Aurora had not first

sought and obtained a copy from Senators who were

forbidden to disclose it. See Kielbowicz, supra, at 433–

34. But as heatedly as the Federalists denounced the

newspaper over the incident, “no move was made to

punish” the journalists involved, “nor is there any

record of a discussion of such a possibility in either the

Cabinet or the Senate.” Daniel N. Hoffman, Contempt

of the United States: The Political Crime That Wasn’t,

25 Am. J. L. Hist. 343, 349 (1981). Indeed, even the

Sedition Act’s proponents stopped short of attempting

to criminalize what the Fifth Circuit believes Texas

may criminalize: asking for confidential information

held by government. See id. at 356; Sedition Act of

1798, 1 Stat. 596.

The same line appears in any number of other

Founding-era controversies sparked by reporters

obtaining confidential information: Even in “the

heyday of libel trials,” the prospect of prosecuting a

reporter for soliciting and publishing truthful

information about the government was beyond the

constitutional pale. Hoffman, Governmental Secrecy,

supra, at 203 (collecting prominent examples of

unauthorized disclosure that went unpunished). And

when the reigning Federalists did cross that line a few

years after the Jay’s Treaty incident—attempting to

punish the Aurora’s editor for obtaining draft election

legislation in violation of the Senate’s rules—a grand

jury refused to indict, a decision that Thomas

Jefferson suggested was compelled by the

constitutional freedom of the press. See Matthew

Schafer, That Time the Senate Issued an Arrest

Warrant for a Reporter, Lessons in History (June 27,

2021), https://perma.cc/TD47-9ZPG. If the Sedition

Act itself has been struck down “in the court of

history,” Sullivan, 376 U.S. at 276, the same

Founding debates make just as clear—if not clearer—

that the Constitution forbids criminalizing the press

for asking for government information, even where

the state might prefer to keep its secrets.

Precedent makes the same point. This Court

has affirmed again and again that the First

Amendment provides virtually absolute protection for

the publication of lawfully acquired, truthful

information on matters of public concern, even where

its initial disclosure to a journalist was unauthorized.

See N.Y. Times Co., 403 U.S. at 714 (classified

information); Florida Star v. B.J.F., 491 U.S. 524, 534

(1989) (name of sexual assault victim); Bartnicki v.

Vopper, 532 U.S. 514, 534–35 (2001) (illegally

intercepted communications). And in Smith v. Daily

Mail Publishing Co., this Court expressly articulated

the principle that should have decided this case:

Information is necessarily “lawfully obtained” if it was

gathered in reliance on “routine newspaper reporting

techniques.” 443 U.S. at 103–104.

In that case, the press had obtained the name

of a juvenile offender “simply by asking various

witnesses, the police, and an assistant prosecuting

attorney.” Id. at 99. In defense of its decision to

prosecute the subsequent publication of the name,

West Virginia urged the position the Fifth Circuit

adopted here: that the juvenile offender’s name was

not “gotten by lawful means” because it was not

obtained “from any public record or hearing . . . or with

the State’s approval.” Pet’rs’ Br. at *11, Smith v.

Daily Mail Publ’g Co., 443 U.S. 97 (1979) (No. 78-482),

1978 WL 223067; compare Pet. App. 17a (faulting

Petitioner because she could have “await[ed] an

official LPD report” or followed Texas “open records

procedures”). But this Court decisively rejected that

argument, holding that the information was “lawfully

obtained” through interviews and that “[a] free press

cannot be made to rely solely upon the sufferance of

government to supply it with information.” Daily

Mail Publ’g Co., 443 U.S. at 104. A citation to Daily

Mail would therefore suffice to resolve this case. This

Court need say nothing new to reiterate that “routine

newspaper reporting techniques”—including, and

especially, soliciting nonpublic information from a

government source—are protected by the First

Amendment. Id. at 103.

If Daily Mail were not authority enough,

though, a raft of state and federal courts have likewise

applied the rule of Daily Mail to a full range of

reporting that relies on the “traditional function of a

free press in seeking out information by asking

questions.” Nicholson v. McClatchy Newspapers, 177

Cal. App. 3d 509, 519 (1986). The core of that work is

“bar[ing] the secrets of government” in particular,

N.Y. Times Co., 403 U.S. at 717 (Black, J., concurring),

and it should go without saying that enormously

consequential reporting about the operations of

government has turned on information solicited from

sources who violated the law to share it, from the

Pentagon Papers to the break-in that exposed

COINTELPRO. See Betty Medsger, Remembering an

Earlier Time When a Theft Unmasked Government

Surveillance, Wash. Post (Jan. 10, 2014),

https://perma.cc/T85B-3UT6. To protect just that

kind of reporting, lower courts have squarely held that

“[j]ournalists are allowed to request”—not just sit idly

waiting to receive—“documents that have been

stolen.” Democratic Nat’l Comm. v. Russian Fed’n,

392 F. Supp. 3d 410, 436 (S.D.N.Y. 2019); see also

Allen v. Beirich, No. CCB-18-3781, 2019 WL 5962676,

at *7 n.11 (D. Md. Nov. 13, 2019), aff’d in part, rev’d

in part on other grounds, No. 19-2419, 2021 WL

2911736 (4th Cir. July 12, 2021) (same). Otherwise,

some of the most important reporting on public affairs

in the nation’s history would have been unlawful.

While Petitioner’s case—which like Daily Mail

itself involves a government source—falls in the

heartland of the right to solicit information directly

relevant to the functions of public officials, the clarity

of the principle is only underlined by the weight of

authority extending the same rule to other routine

reporting contexts. Without the First Amendment

right to ask questions of sources who may not be

authorized to share what they know, the threat of

crushing liability2 would likewise foreclose reporting

on, for instance, any industry fenced off by

nondisclosure arrangements. See Bill Carter, Tobacco

Company Sues Former Executive Over CBS Interview,

This Court has often noted that whether a prohibition on

protected speech or newsgathering “be civil or criminal, it must

satisfy relevant constitutional standards.” Garrison, 379 U.S. at

67; see also Counterman v. Colorado, 600 U.S. 66, 76 (2023).

Precedent refusing to impose civil liability on the press for

soliciting information should therefore likewise have provided

warning that Texas cannot criminalize that newsgathering.

N.Y. Times (Nov. 22, 1995), https://perma.cc/JA4FDGQ4 (press reported health risks of smoking by

interviewing source in violation of nondisclosure

agreement); John Carreyrou, Theranos Whistleblower

Shook the Company—and His Family, Wall St. J.

(Nov. 18, 2016), https://perma.cc/LST9-NP7J (press

reported medical fraud by interviewing source in

violation of nondisclosure agreement); see Ronan

Farrow, Harvey Weinstein’s Secret Settlements, New

Yorker (Nov. 21, 2017), https://perma.cc/J96Z-DNDX

(press reported sexual harassment by interviewing

source in violation of nondisclosure agreement). By

the Fifth Circuit’s lights, all of that reporting might

have been unprotected by the First Amendment.

Thankfully, every other court to consider the issue

disagrees. See Trump v. Trump, 79 Misc. 3d. 866, 882

(N.Y. Sup. Ct. N.Y. Cnty. 2023) (failing to find “a

single case where any court, whether state or federal,

has held that a reporter is liable for inducing his or

her source to breach a confidentiality provision”).

Courts have likewise found a First Amendment

right to ask questions of jurors, for instance, which

underpins reporting on the criminal justice system,

see In re Express-News Corp., 695 F.2d 807, 808–09

(5th Cir. 1982); United States v. Sherman, 581 F.2d

1358, 1361 (9th Cir. 1978), or to ask questions of

voters, which drives essential political journalism, see

Daily Herald Co. v. Munro, 838 F.2d 380, 384 (9th Cir.

1988) (exit polling protected by the First

Amendment); ABC, Inc. v. Wells, 669 F. Supp. 2d 483,

487 (D.N.J. 2009) (same); CBS Inc. v. Smith, 681 F.

Supp. 794, 802 (S.D. Fla. 1988) (same). The list could

go on. The point, though, is that while the facts of the

cases are as diverse as the news itself, each authority

straightforwardly applies the holding of Daily Mail:

The First Amendment protects journalists’ right to

obtain information “simply by asking,” 443 U.S. at 99,

including—and especially—to “bare the secrets of

government” in particular, N.Y. Times Co., 403 U.S.

at 717 (Black, J., concurring). That rule is perhaps

the Constitution’s most basic First Amendment

guarantee. In denying it, the Fifth Circuit’s decision

stands alone.

II.

In the lower courts, qualified immunity

systematically

undermines

the

Constitution’s safeguards for a free press.

Because it exposes journalists in Texas,

Louisiana, and Mississippi to the risk of arrest for

carrying out their daily work, the Fifth Circuit’s legal

error warrants review on its own terms. Underlining

the case for this Court’s consideration, the Fifth

Circuit’s analysis is also symptomatic of a deeper

dysfunction that requires this Court’s correction:

Lower courts have struggled to apply ordinary First

Amendment standards when the right to gather the

news—as opposed to the right to speak or publish—is

at stake, laboring under the misconception that this

Court has supplied no “clearly defined framework” for

such cases. See S.H.A.R.K., 499 F.3d at 560. The

consequences are especially grave in the context of

qualified immunity, where confusion has given some

public officials a free hand to retaliate against

newsgathering even though comparable efforts to

punish speech or publication would be patently

unlawful.

In principle, the appropriate analysis in

newsgathering cases should be straightforward.

“[R]outine newspaper reporting techniques” are

entitled to the same degree of constitutional

protection as any other First Amendment activity,

Daily Mail Publ’g Co., 443 U.S. at 103, subject to

reasonable time, place, and manner restrictions but

not to whim, caprice, animus, or deliberate

censorship, see, e.g., Nicholas v. Bratton, 376 F. Supp.

3d 232, 276–77 (S.D.N.Y. 2019) (clearly established

that “content-based restrictions on newsgathering”

are subject to strict scrutiny (citation and internal

quotation marks omitted)); Gericke v. Begin, 753 F.3d

1, 9 (1st Cir. 2014) (clearly established that time,

place, and manner restrictions on newsgathering are

subject to intermediate scrutiny); Quraishi v. St.

Charles Cnty., 986 F.3d 831, 839 (8th Cir. 2021)

(clearly established that retaliation against

newsgathering violates the First Amendment). Those

straightforward rules flow from this Court’s guidance

that “the basic principles of freedom of speech and the

press, like the First Amendment’s command, do not

vary.” Joseph Burstyn, Inc., 343 U.S. at 503. While

“[l]aws enacted to control or suppress speech may

operate at different points in the speech process,”

Citizens United, 558 U.S. at 336, it “makes no

difference” to the constitutional analysis whether the

government’s heavy

hand

intervenes

when

information is first gathered or when it is distributed

to an audience, Brown v. Ent. Merchs. Ass’n, 564 U.S.

786, 792 n.1 (2011).

That it should be easy to apply those

unwavering rules is well-illustrated by Quraishi v. St.

Charles County, a recent decision from the Eighth

Circuit. There, a deputy of the St. Charles County

police department argued that he was entitled to

immunity for allegedly “deploying a tear-gas canister

at law-abiding reporters” because no previous case

addressed retaliation against reporters in particular.

Quraishi, 986 F.3d at 839. The panel candidly

acknowledged that the circuit did not have on-point

precedent “where reporters are arrested while

peacefully filming a protest.” Id. at 838. But that was

irrelevant, as the court noted, because the “right to

exercise First Amendment freedoms without facing

retaliation from government officials is clearly

established,” id. (citation omitted), and “[r]eporting is

a First Amendment activity,” id. (citing Branzburg v.

Hayes, 408 U.S. 665, 681 (1972)). Axiomatically, then,

police can no more punish reporters for their reporting

than they could the publisher for printing it. The

“brevity of the First Amendment discussion” required

to settle the question makes clear the answer would

be “virtually self-evident” to any reasonable official.

Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011).

But as the Fifth Circuit’s decision below

illustrates, lower courts have introduced bizarre

complications into the analysis, expressing doubt

whether the most ordinary exercises of the right to

gather the news come within the First Amendment’s

protection at all. Much as the Fifth Circuit convinced

itself to gainsay the right to ask questions of public

officials, for instance, a different panel of the Eighth

Circuit recently expressed uncertainty whether law

enforcement officers can retaliate against those who

merely look at them. See Molina v. City of St. Louis,

59 F.4th 334, 340 (8th Cir. 2023); see also Molina v.

City of St. Louis, 65 F.4th 994, 994 (8th Cir. 2023)

(mem.) (Colloton, J., dissenting from denial of

rehearing en banc) (noting that the panel’s decision

would allow police to enforce a statute reading “[i]t

shall be unlawful for any person to watch policecitizen interactions”). To similar effect, while it is

difficult to imagine a court concluding that the right

to criticize firefighters is different in scope than the

right to criticize the police, see City of Houston v. Hill,

482 U.S. 451, 461 (1987), lower courts have managed

to persuade themselves that a reasonable officer

might think the right to gather news admits of such

distinctions, see Crocker v. Beatty, 995 F.3d 1232, 1243

n.8 (11th Cir. 2021).

These decisions are just a small sample of the

ways in which lower courts’ confusion has failed to

protect the newsgathering right. And the lack of a

meaningful remedy when that right is violated has

serious consequences for working journalists. As is

often true of First Amendment freedoms, the right to

gather news—while “supremely precious”—is also

“delicate and vulnerable.” NAACP v. Button, 371 U.S.

415, 433 (1963). A retaliatory arrest or prosecution

has an “immediate and irreversible” impact on the

right to gather news, not unlike a classic prior

restraint; it stands to reason that information never

gathered in the first instance because official

retaliation derailed a line of reporting is beyond

recovery. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559

(1976). To put it bluntly, if an official’s goal is to

muzzle the press, retaliation is attractive because it

often works. The right to gather news depends, then,

on an adequate deterrent to such abuses—a deterrent

that qualified immunity too often defangs.

The predictable result is to provide a safe

harbor for officials who would happily criminalize

ordinary acts of journalism. Consider stark examples

from the last year alone. In Illinois, the Daily

Southtown’s Hank Sanders—like Petitioner—was

accused of violating local law by “asking public

employees for comment.” Dana Kennedy, ChicagoArea Reporter Ticketed – for Asking Public Employees

Questions,

N.Y.

Post

(Nov.

2023),

https://perma.cc/8VMU-K974.

In Arizona and

California, journalists have been intimidated for

knocking on public officials’ doors.

See Laurie

Roberts, Sen. Wendy Rogers Runs to Court to Avoid a

Reporter Armed with . . . Questions, Ariz. Republic

(Apr. 21, 2023), https://perma.cc/QQ85-9UE4; Kevin

Rector, Outrage Over Times’ Journalism Exposes

LAPD’s Ignorance of a Free Press, Experts Say, L.A.

Times (July 14, 2023), https://perma.cc/GDJ2-CF95.

And in Kansas, the newsroom of the Marion County

Record was raided by police because its reporters had

visited a publicly accessible government webpage. See

Bruce D. Brown & Gabe Rottman, Claiming a

‘Computer Crime’ Shouldn’t Give Police a Free Pass to

Raid Newspapers, L.A. Times (Aug. 31, 2023),

https://perma.cc/F8DS-Z9AP. In these and too many

other jurisdictions, the most basic exercises of the

freedom of the press remain under legal threat.

This Court should intervene to ensure those

abuses go no further. In this case, the Fifth Circuit

lost sight of the core First Amendment principle that

“[a] free press cannot be made to rely solely upon the

sufferance of government to supply it with

information.” Daily Mail Publ’g Co., 443 U.S. at 104.

If left in place, the decision below will chill the core

press function of seeking information about the

operations of government—while emboldening those

officials who would seek to stop that work. That result

has no foothold in the Constitution’s meaning or this

Court’s precedent. This Court should grant the

petition and reverse.

CONCLUSION

For the foregoing reasons, amici respectfully

urge the Court to grant Petitioner’s writ of certiorari.

Respectfully submitted,