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, ET AL.

On Petition for Writ of Certiorari

to the United States Courts of Appeals

for the Fifth Circuit

BRIEF OF PROJECT FOR PRIVACY AND

SURVEILLANCE ACCOUNTABILITY

AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

ANNIKA BOONE BARKDULL*

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

INTRODUCTION, SUMMARY AND

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

STATEMENT .............................................................. 2

REASONS FOR GRANTING THE PETITION.......... 3

I.

Newsgathering Is Fundamental to the

Freedom of the Press. .......................................... 3

II.

Protected Speech Cannot Be Criminalized,

and Thus Does Not Provide Probable Cause

for an Arrest for the Crime of Engaging in

Such Speech. ........................................................ 6

CONCLUSION ............................................................ 9

TABLE OF AUTHORITIES

Cases

Bailey v. Andrews,

811 F.2d 366 (7th Cir. 1987) .................................... 7

Branzburg v. Hayes,

408 U.S. 665 (1972) .................................................. 3

City of Houston v. Hill,

482 U.S. 451 (1987) .............................................. 6, 7

Cohen v. California,

403 U.S. 15 (1971) .................................................... 7

Duran v. City of Douglas,

904 F.2d 1372 (9th Cir. 1990) .............................. 8, 9

Gainor v. Rogers,

973 F.2d 1379 (8th Cir. 1992) .............................. 6, 7

Gentile v. State Bar,

501 U.S. 1030 (1991) ................................................ 3

Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) .................................. 3, 5

Gooding v. Wilson,

405 U.S. 518 (1972) .................................................. 7

Hess v. Indiana,

414 U.S. 105 (1973) .................................................. 7

In re Express-News Corp.,

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

Leonard v. Robinson,

477 F.3d 347 (6th Cir. 2007) .................................... 8

Mills v. Alabama,

384 U.S. 214 (1966) .................................................. 5

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Muraveva v. Toffoli,

709 F. App'x 131 (3d Cir. 2017) ............................... 8

Pell v. Procunier,

417 U.S. 817 (1974) .................................................. 4

Press-Enter. Co. v. Superior Court,

478 U.S. 1 (1986) ...................................................... 3

Sandul v. Larion,

119 F.3d 1250 (6th Cir. 1997) .................................. 8

Street v. New York,

394 U.S. 576 (1969) .................................................. 7

Swiecicki v. Delgado,

463 F.3d 489 (6th Cir. 2006) ................................ 7, 8

Wayte v. United States,

470 U.S. 598 (1985) .................................................. 6

Zalaski v. City of Hartford,

462 F. App'x 13 (2d Cir. 2011) ................................. 8

Statute

Texas Penal Code § 39.06(c) ........................................ 2

Other Authorities

Mallory B. Rechtenbach,

More Than Mere “Constitutional Window

Dressing”: Why the Press Clause Should

Protect A Limited Right to Gather

Information, 98 Neb. L. Rev. 188 (2019) ............. 4, 5

iii

INTRODUCTION, SUMMARY AND

INTEREST OF AMICUS CURIAE 1

This Court has been clear that the First Amendment includes the right not only to publish, but also to

seek out information and engage in newsgathering.

And the most basic means for journalists and citizens

to seek out information about government activities is

to ask government officials questions. But when

Priscilla Villarreal asked a police officer a question

and published his answer, she was arrested.

That arrest was a clear violation of the First

Amendment. And it was also a violation of Ms. Villarreal’s Fourth Amendment rights. This Court has been

clear that the exercise of constitutional rights cannot

be the motivation for prosecution. Nor can it serve as

the basis for probable cause for an arrest, as the circuit

courts have repeatedly recognized. The Fifth Circuit

granted qualified immunity on the theory that the officers reasonably believed they had probable cause to

arrest Ms. Villarreal because she sought and obtained

non-public information from a government official, in

violation of Texas law. Pet. 11a. But that was error,

because any reasonable officer would have known that

arresting Ms. Villarreal for the mere act of routine

newsgathering was unconstitutional. Only this Court

can reverse that error, which will have serious adverse

1 No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members and its counsel, made any monetary contribution

toward the preparation or submission of this brief. All parties

received notice of amicus’s intent to file more than ten days before

this filing.

consequences throughout the Fifth Circuit and in any

other jurisdictions that follow that Circuit’s analysis.

Protection of constitutional rights—especially

Fourth Amendment rights—is a key mission of amicus

curiae Project for Privacy and Surveillance Accountability, Inc. (PPSA), a nonprofit, nonpartisan organization dedicated to protecting privacy rights and guarding against an expansive surveillance state. PPSA

urges this Court to grant certiorari and make clear

that the exercise of constitutional rights, including the

right to newsgathering, cannot serve as probable

cause for an arrest.

STATEMENT

Priscilla Villarreal is a citizen-journalist in Laredo,

Texas known for her Facebook reporting about local

crime and misconduct by police and prosecutors. Pet.

3a. She published stories about a public suicide and a

fatal car accident, based on information that a Laredo

Police Department officer confirmed to her. Pet. 4a.

Laredo officers then arrested Priscilla, alleging she

had violated Texas Penal Code Section 39.06(c), a

Texas statute that has never been enforced by local

law enforcement in the 23 years it has been on the

books. Pet. 7a. The statute makes it a felony to solicit

or receive nonpublic information from a public servant

with the intent to benefit from it. Texas Penal Code

§ 39.06(c).

Villarreal sued Laredo police officers and other

government officials under § 1983 for violating her

First Amendment rights. Pet. 8a. After the district

court dismissed her case, a panel of the Fifth Circuit

reversed in part and held that the defendants were not

entitled to qualified immunity because the arrest was

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“obviously” unconstitutional. Pet. 8a-9a. The en banc

majority disagreed because, “[a]t the time of Villarreal’s arrest, no final decision of a state court had held

section 39.06(c) unconstitutional.” Pet. 23a.

REASONS FOR GRANTING THE PETITION

I.

Newsgathering Is Fundamental to the Freedom of the Press.

Freedom of the press inherently includes the right

to newsgathering, as this Court has long recognized.

After all, “without some protection for seeking out the

news, freedom of the press could be eviscerated.”

Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Newsgathering thus “is not without its First Amendment

protections,” and “reporters remain free to seek news

from any source by means within the law.” Id. at 681682, 707. And there is no more basic element of newsgathering than the right to ask questions.

1. The right to newsgathering is particularly important when citizens seek information regarding the

activities of government. After all, as this Court has

explained, “many governmental processes operate best

under public scrutiny.” Press-Enter. Co. v. Superior

Court, 478 U.S. 1, 8 (1986). And, as this Court and

many others have recognized, “[e]nsuring the public's

right to gather information about their officials” thus

“not only aids in the uncovering of abuses, but also

may have a salutary effect on the functioning of government more generally.” Glik v. Cunniffe, 655 F.3d

78, 82-83 (1st Cir. 2011) (citing Gentile v. State Bar,

501 U.S. 1030, 1034-1035 (1991); Press-Enter. Co. 478

U.S. at 8).

To be sure, the right to newsgathering does not give

the press a special right of access to confidential

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government information, and the government has no

duty to make information available to journalists that

it does not make available to the public. But a journalist is generally “free to seek out sources of information

not available to members of the general public,” and

“the government cannot restrain the publication of

news emanating from such sources.” Pell v. Procunier,

417 U.S. 817, 834 (1974) (citations omitted). The government may choose to keep some information confidential. But simply asking for such information is

First Amendment-protected speech, not a crime.

In other words, the Laredo police were not required

to answer Villarreal’s questions. But they could not

punish her for her press activity of simply asking questions about any information it had not yet made public, nor for publishing the answers they voluntarily

gave her, without running afoul of the First Amendment.

2. Moreover, as one scholar explained, “Just as the

right to receive information is an ‘inherent corollary’

to the freedom of speech, the right to gather information is a necessary corollary to the freedom of the

press.”2 And “[p]rotecting newsgathering activities

that are directly linked to expression (publication)”

thus “respects the original meaning and textual limitations of the First Amendment, while also fulfilling

2 Mallory B. Rechtenbach, More Than Mere “Constitutional

Window Dressing”: Why the Press Clause Should Protect A Limited Right to Gather Information, 98 Neb. L. Rev. 188, 210 (2019)

(quoting Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality

opinion)).

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the underlying goals of facilitating debate and informing the public.” 3

That First Amendment protection is vital. As the

First Circuit has stated, “[g]athering information

about government officials in a form that can readily

be disseminated to others serves a cardinal First

Amendment interest in protecting and promoting ‘the

free discussion of governmental affairs.’” Glik, 655

F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214,

218 (1966)). And the Fifth Circuit itself has recognized

that “[t]he first amendment's broad shield for freedom

of speech and of the press is not limited to the right to

talk and to print. The value of these rights would be

circumscribed were those who wish to disseminate information denied access to it, for freedom to speak is

of little value if there is nothing to say.” In re ExpressNews Corp., 695 F.2d 807, 808 (5th Cir. 1982).

Yet in this case, the Fifth Circuit shielded officers

from liability for infringing Ms. Villarreal’s right to

seek such information because her conduct fell within

Texas Penal Code § 39.06(c), and “no final decision of

a state court had held the law unconstitutional at the

time of the arrest.” Pet. 22a. But because that law restricts the most routine newsgathering activity—

simply asking government officials a question about

any information that has not yet been made public—

that law is obviously unconstitutional. This Court

should grant certiorari and make clear that citizens

cannot be punished for exercising their right to gather

news and ask questions of public officials.

3 Id. at 212.

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II. Protected Speech Cannot Be Criminalized,

and Thus Does Not Provide Probable Cause

for an Arrest for the Crime of Engaging in

Such Speech.

The Fifth Circuit’s en banc decision is incorrect and

warrants this Court’s attention for a second and

equally important reason: Ms. Villarreal was arrested

for engaging in First Amendment-protected speech,

and the law is clear that such speech cannot be criminalized and thus does not provide the probable cause

for an arrest required by the Fourth Amendment. As

this Court has held, “the freedom of individuals verbally to oppose or challenge police action without

thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a

police state.” City of Houston v. Hill, 482 U.S. 451, 462463 (1987). And, just as “the decision to prosecute may

not be deliberately based upon *** the exercise of protected statutory and constitutional rights,” neither can

the decision to arrest be based upon the exercise of

those rights. See Wayte v. United States, 470 U.S. 598,

608 (1985) (internal quotation marks omitted).

Several circuit courts have already recognized this

reality and held that protected speech cannot be criminalized and thus does not provide probable cause for

an arrest for the crime of engaging in such speech. For

example, in Gainor v. Rogers, a plaintiff alleged “that

he was merely walking around the country with his

cross and preaching the Gospel of Jesus” on Good Friday when police arrested him. 973 F.2d 1379, 1386

(8th Cir. 1992) (internal quotation marks and citation

omitted). The Eighth Circuit correctly held that such

protected speech “does not give rise to reasonable suspicion of criminal conduct,” and that “a reasonable

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officer, in making the arrest, would or should have

known that he was violating clearly established law.”

Id. at 1386-1387. And it rightly recognized that it is

“fundamental” that “a lawful arrest may not ensue

where the arrestee is merely exercising his First

Amendment rights.” Id. at 1387 (citing Houston v.

Hill, 482 U.S. 451 (1987); Hess v. Indiana, 414 U.S.

105 (1973); Gooding v. Wilson, 405 U.S. 518 (1972); Cohen v. California, 403 U.S. 15 (1971); Street v. New

York, 394 U.S. 576 (1969)).

Similarly, the Seventh Circuit denied qualified immunity to an officer who arrested an individual with

whom he had a verbal dispute after the individual

questioned whether the officer had shot his dog. Bailey

v. Andrews, 811 F.2d 366, 371 (7th Cir. 1987). As the

court recognized, that question and the subsequent

dispute with the officer were speech protected by the

First Amendment, and therefore, if the officer “arrested Bailey in response to Bailey’s speech, the arrest

would violate Bailey's first amendment right to speak

freely and petition an agent of the government for redress of grievances.” Id. at 372.

Likewise, the Sixth Circuit has repeatedly recognized that “[a]n officer may not base his probablecause determination on speech protected by the First

Amendment.” Swiecicki v. Delgado, 463 F.3d 489, 498

(6th Cir. 2006) (abrogated on other grounds by Wallace

v. Kato, 549 U.S. 384 (2007)). The officer must have

reason, at the time of the arrest, to believe that the

arrestee “had committed or was committing an offense”—and protected speech cannot be that offense.

Id. The Sixth Circuit has thus denied qualified immunity to officers whose arrests were made on the basis of protected speech, including cursing at a group of

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pro-life demonstrators, Sandul v. Larion, 119 F.3d

1250, 1255-1256 (6th Cir. 1997), and heckling at a

baseball game, Swiecicki, 463 F.3d at 502. See also

Leonard v. Robinson, 477 F.3d 347, 358 (6th Cir. 2007)

(discussed at Pet. 29).

The Second Circuit also denied qualified immunity

to officers who arrested protesters. The court explained that, if the “motive for the arrest was message

suppression rather than content-neutral law enforcement, no reasonable officer could think his actions did

not violate the First Amendment[.]” Zalaski v. City of

Hartford, 462 F. App'x 13, 15 (2d Cir. 2011). Similarly,

the Third Circuit recognized that protected speech

“may not be relied upon to support a probable cause

finding.” Muraveva v. Toffoli, 709 F. App'x 131, 133 n.

4 (3d Cir. 2017).

Finally, the Ninth Circuit has also recognized that

officers cannot arrest individuals to deter protected

speech. In Duran v. City of Douglas, an officer arrested

a man who had spewed epithets at him. 904 F.2d 1372,

1375-1376 (9th Cir. 1990). Relying on this Court’s

holding in Hill, the court stated that, “while police, no

less than anyone else, may resent having obscene

words and gestures directed at them, they may not exercise the awesome power at their disposal to punish

individuals for conduct that is not merely lawful, but

protected by the First Amendment.” Id. at 1378. “As

such, it fell squarely within the protective umbrella of

the First Amendment and any action to punish or deter such speech—such as stopping or hassling the

speaker—is categorically prohibited by the Constitution.” Id. There was thus no probable cause for detention, and the officer was not entitled to qualified immunity—“[w]hether or not [he] was aware of the fine

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points of First Amendment law”—because any reasonable officer “ought to have known that he was exercising his authority in violation of well-established constitutional rights.” Id.

In sum, the circuit courts have repeatedly recognized that protected speech cannot be criminalized

and cannot be the grounds for an arrest consistent

with the Fourth Amendment. That understanding is

consistent with this Court’s precedents. Certiorari is

warranted to correct the Fifth Circuit’s error in holding that Laredo officers reasonably believed they had

probable cause to arrest Ms. Villarreal based on her

constitutionally protected speech.

CONCLUSION

Seeking information on government affairs is a core

speech and press freedom protected by the First

Amendment. The government may choose to keep

some information confidential. But it cannot punish

journalists simply for asking for any non-public information. And the exercise of First Amendment rights

cannot logically or legally provide the probable cause

for arrest that the Fourth Amendment requires. Amicus urges this Court to grant certiorari and make clear

that government officials cannot be shielded from liability when they punish citizens for the mere act of

asking questions.

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Respectfully submitted,

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

ANNIKA BOONE BARKDULL*

SCHAERR|JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

May 24, 2024

*Not admitted to the D.C. Bar.

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