Opposition 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 A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF STATE OF TEXAS IN OPPOSITION

KEN PAXTON

Attorney General of Texas

AARON L. NIELSON

Solicitor General

BRENT WEBSTER

First Assistant Attorney

General

LANORA C. PETTIT

Principal Deputy Solicitor

General

Counsel of Record

BETH KLUSMANN

Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Lanora.Pettit@oag.texas.gov

(512) 936-1700

QU E S TIO N P RE SE N TE D

For half a century, this Court has held that States

may, consistent with the First Amendment, limit access

to certain information held by the government and apply

those limits to members of the media seeking to report

on government activities. Houchins v. KQED, Inc., 438

U.S. 1, 14 (1978) (plurality op.); id. at 16 (Stewart, J., concurring in the judgment); Branzburg v. Hayes, 408 U.S.

665, 683 (1972). And for decades, Texas has made it a

crime to solicit a leak of nonpublic information from a

public official for personal gain. Tex. Penal Code

§ 39.06(c). “Police are charged to enforce [such] laws until and unless they are declared unconstitutional”—“with

the possible exception of a law so grossly and flagrantly

unconstitutional that any person of reasonable prudence

would be bound to see its flaws.” Michigan v. DeFillippo,

443 U.S. 31, 38 (1979).

At least before this Court, Priscilla Villarreal—a selfdescribed “citizen journalist” who posts prolifically on

Facebook—does not contend that section 39.06(c) is flagrantly unconstitutional. Nor does she deny that officers

acted pursuant to a facially valid warrant when they arrested her for soliciting nonpublic information regarding

two deaths from a backchannel source within the Laredo

Police Department. Nevertheless, she argues that any

reasonable officer would have known the First Amendment precluded her arrest for her journalistic activities.

The question presented is:

Whether qualified immunity protects an officer’s reliance on a properly issued warrant or whether he must

anticipate a previously unrecognized, as-applied First

Amendment defense to a facially constitutional statute.

(I)

TA BLE O F C O NTE N TS

Page

Question Presented........................................................... I

Table of Authorities ........................................................ IV

Introduction....................................................................... 1

Statement .......................................................................... 3

I. Statutory Background .......................................... 3

II. Factual Background .............................................. 5

III. Procedural History................................................ 6

Reasons to Deny the Petition ........................................ 10

I. The Fifth Circuit’s Decision Does Not

Conflict With Precedent from Either this

Court or Another Court of Appeals ................... 10

A. The Fifth Circuit correctly applied this

Court’s precedent to the facts before it ....... 11

1. Texas law does not prohibit merely

asking questions ....................................... 12

2. This Court has recognized a right to

publish information lawfully obtained,

not to obtain information unlawfully ...... 15

3. Villarreal has not shown a violation of

the Court’s warrant precedent ............... 21

4. Hope won’t save Villarreal’s claim as

there is no obvious constitutional

violation .................................................... 24

B. The Fifth Circuit’s ruling does not conflict

with decisions from other circuits ................ 25

II. This Case Is Not a Good Vehicle To Resolve

Any Hypothetical Conflict Because Other

Grounds Support the Judgment......................... 28

III. Courts Can Protect First Amendment Rights

While Respecting Qualified Immunity .............. 31

(II)

III

Conclusion ....................................................................... 33

IV

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ....................................................... 32

Amgen, Inc. v. Sanofi,

598 U.S. 594 (2023) ....................................................... 28

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ................ 1, 11, 22, 23-24, 25, 29, 33

Associated Press v. NLRB,

301 U.S. 103 (1937) ....................................................... 15

Bartnicki v. Vopper,

532 U.S. 514 (2001) ....................................................... 18

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ....................................................... 24

Black v. Cutter Laboratories,

351 U.S. 292 (1956) ....................................................... 29

Book People, Inc. v. Wong,

91 F.4th 318 (5th Cir. 2024) ......................................... 32

Borgelt v. Austin Firefighters Ass’n, IAFF

Loc. 975,

692 S.W.3d 288 (Tex. 2024) ............................................ 5

Branzburg v. Hayes,

408 U.S. 665 (1972) ........................ I, 1, 10, 12, 15, 16, 25

Bridges v. California,

314 U.S. 252 (1941) ....................................................... 19

Butz v. Economou,

438 U.S. 478 (1978) ......................................................... 3

Cameron v. EMW Women’s Surgical Ctr., PSC,

595 U.S. 267 (2022) ......................................................... 8

V

Page(s)

Cases (ctd.):

City of Houston v. Hill,

482 U.S. 451 (1987) ................................................. 19, 28

Clark v. Martinez,

543 U.S. 371 (2005) ....................................................... 32

Cohen v. California,

403 U.S. 15 (1971) ................................................... 26, 27

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ........................................... 16, 17, 18

District of Columbia v. Wesby,

583 U.S. 48 (2018) ......................................................... 10

Escambia County v. McMillan,

466 U.S. 48 (1984) ......................................................... 29

Expressions Hair Design v. Schneiderman,

581 U.S. 37 (2017) ......................................................... 19

Fla. Star v. B.J.F.,

491 U.S. 524 (1989) ................................................. 15, 18

Freedom From Religion Found. v. Abbott,

955 F.3d 417 (5th Cir. 2020) ........................................ 32

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ....................................................... 14

Gonzalez v. Trevino,

144 S. Ct. 1663 (2024) ............................................. 30, 32

Heien v. North Carolina,

574 U.S. 54 (2014) ......................................................... 33

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................... 11, 24, 25

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) ....................................... I, 1, 10, 15, 25

VI

Page(s)

Cases (ctd.):

Hustler Magazine v. Falwell,

485 U.S. 46 (1988) ................................................... 19, 28

Illinois v. Krull,

480 U.S. 340 (1987) ....................................................... 32

Indus. Found. of the S. v.

Tex. Indus. Accident Bd.,

540 S.W.2d 668 (Tex. 1976) ............................................ 9

Izumi Seimitsu Kogyo Kabushiki Kaisha v.

U.S. Philips Corp.,

510 U.S. 27 (1993) ......................................................... 14

Jacobellis v. Ohio,

378 U.S. 184 (1964) ....................................................... 19

Jordan v. Jenkins,

73 F.4th 1162 (10th Cir. 2023) ............................... 28, 32

Keenan v. Tejeda,

290 F.3d 252 (5th Cir. 2002) ........................................ 31

Landmark Commc’ns, Inc. v. Virginia,

435 U.S. 829 (1978) ....................................................... 19

LAPD v. United Reporting Publ’g Corp.,

528 U.S. 32 (1999) ......................................................... 15

Lawrence v. Reed,

406 F.3d 1224 (10th Cir. 2005) .................................... 28

Leonard v. Robinson,

477 F.3d 347 (6th Cir. 2007) .................................. 26, 27

Malley v. Briggs,

475 U.S. 335 (1986) ....................................................... 23

VII

Page(s)

Cases (ctd.):

Marcus v.

Search Warrants of Prop. at 104 E. Tenth St.,

367 U.S. 717 (1961) ..................................... 21, 22, 23, 29

McKesson v. Doe,

592 U.S. 1 (2020) ........................................................... 14

Messerschmidt v. Millender,

565 U.S. 535 (2012) ....................................................... 29

Michigan v. DeFillippo,

443 U.S. 31 (1979) ....................................I, 10, 16, 17, 32

Mink v. Knox,

613 F.3d 995 (10th Cir. 2010) ...................................... 28

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024) ............................................. 12, 16

Mullenix v. Luna,

577 U.S. 7 (2015) ....................... 10, 11, 17, 19, 22, 24, 25

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

403 U.S. 713 (1971) ................................................... 5, 15

Nieves v. Bartlett,

587 U.S. 391 (2019) ....................................................... 30

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009) ....................................................... 29

Ohralik v. Ohio State Bar Ass’n,

436 U.S. 447 (1978) ......................................................... 1

Okla. Publ’g Co. v. District Court,

430 U.S. 308 (1977) ....................................................... 18

Page v. State,

492 S.W.2d 573 (Tex. Crim. App. 1972)...................... 13

Paxton v. City of Dallas,

509 S.W.3d 247 (Tex. 2017) ............................................ 3

VIII

Page(s)

Cases (ctd.):

Paxton v. Longoria,

646 S.W.3d 532 (Tex. 2022) ...................................... 5, 13

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................. 22, 29

People v. Boomer,

655 N.W.2d 255 (Mich. Ct. App. 2002) ....................... 26

Pierson v. Ray,

386 U.S. 547 (1967) ....................................................... 16

Roaden v. Kentucky,

413 U.S. 496 (1973) ..................................... 21, 22, 23, 29

Sause v. Bauer,

585 U.S. 957 (2018) ................................................. 19, 20

Smith v. Daily Mail Publ’g Co.,

443 U.S. 97 (1979) ................................................... 12, 18

Snider v. City of Cape Girardeau,

752 F.3d 1149 (8th Cir. 2014) ................................ 27, 30

Stanford v. Texas,

379 U.S. 476 (1965) ....................................................... 23

State v. Ford,

179 S.W.3d 117 (Tex. App.—San Antonio 2005) ..... 4, 5

State v. Newton,

179 S.W.3d 104 (Tex. App.—San Antonio 2005) ......... 5

Steger & Bizzell, Inc. v. Vandewater Constr., Inc.,

811 S.W.2d 687 (Tex. App.—Austin 1991) ................. 13

Street v. New York,

394 U.S. 576 (1969) ....................................................... 26

Taylor v. Riojas,

592 U.S. 7 (2020) ........................................................... 24

IX

Page(s)

Cases (ctd.):

Texas v. Johnson,

491 U.S. 397 (1989) ....................................................... 27

Tidwell v. State,

No. 08-11-00322-CR, 2013 WL 6405498

(Tex. App.—El Paso Dec. 4, 2013)................................ 4

United States v. Eichman,

496 U.S. 310 (1990) ....................................................... 27

United States v. Hansen,

599 U.S. 762 (2023) ....................................... 1, 12, 13, 14

United States v. Lanier,

520 U.S. 259 (1997) ....................................................... 25

Villarreal v. City of Laredo,

17 F.4th 532 (5th Cir. 2021) ........................................... 7

Villarreal v. City of Laredo,

44 F.4th 363 (5th Cir. 2022) ........................................... 8

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015) ......................................................... 1

Yee v. City of Escondido,

503 U.S. 519 (1992) ....................................................... 20

Zemel v. Rusk,

381 U.S. 1 (1965) ........................................................... 15

Zurcher v. Stanford Daily,

436 U.S. 547 (1978) ................................................. 12, 24

Constitutional Provisions, Statutes and Rules:

U.S. Const.:

amend. I.... I, 1-2, 7-8, 10-12, 14-16, 18-21, 23, 25, 29-33

amend. IV ......................................... 21-23, 26, 29, 30, 33

amend. XIV ............................................................. 18, 21

X

Page(s)

Constitutional Provisions, Statutes and Rules (ctd.):

28 U.S.C. § 2403(b) ............................................................... 7

42 U.S.C. § 1983 ...................................................... 11, 16, 33

Tex. Gov’t Code:

§ 552.001(a) ...................................................................... 3

§ 552.002(a)...................................................................... 3

§ 552.003(6)...................................................................... 4

§ 552.021 .......................................................................... 4

§§ 552.101-.163 ................................................................ 3

§ 552.101 .......................................................................... 3

§ 552.221(a)...................................................................... 3

§ 552.301(a)...................................................................... 4

§ 552.321 .......................................................................... 4

§ 552.324 .......................................................................... 4

§ 2054.0591(b) ................................................................. 4

Tex. Health & Safety Code § 245.011(d) ............................ 4

Tex. Penal Code:

§ 1.07(7) ........................................................................... 4

§ 7.02 .............................................................................. 13

§ 39.06 ................................................................ 13, 14, 32

§ 39.06(c) .............. I, 1-2, 4-9, 11-12, 14, 16-17, 19, 27-29

§ 39.06(d) ................................................................... 4, 13

Tex. Transp. Code § 550.065(f)(2)(A) ................................. 9

W. Va. Code § 49–7–3 ......................................................... 18

Fed. R. Civ. P. 12(b)(6) ........................................................ 7

Sup. Ct. R. 10(a) ........................................................... 22, 26

Other Authorities:

Bryan A. Garner, A DICTIONARY OF

MODERN LEGAL USAGE (2d ed. 1995) ........................ 12

XI

Page(s)

Other Authorities (ctd.):

https://www.facebook.com/lagordiloca956/ ........................ 5

Model Penal Code § 5.02 (2001) ........................................ 13

Potter Stewart, Or of the Press,

26 HASTINGS L.J. 631 (1975) ....................................... 15

Solicitation, BLACK’S LAW DICTIONARY

(11th ed. 2019) ............................................................... 13

Stephen I. Vladeck, Inchoate Liability and the

Espionage Act: The Statutory Framework and the

Freedom of the Press,

1 HARV. L. & POL’Y REV. 219 (2007) ..... 2, 11, 20, 25, 29

Stephen M. Shapiro et al., SUPREME

COURT PRACTICE (10th ed. 2013) ............................... 31

Tex. Att’y Gen. OR2022-36798,

2022 WL 17552725 (2022) .............................................. 9

Timothy B. Dyk, Newsgathering, Press Access, and the

First Amendment,

44 STAN. L. REV. 927 (1992) ........................................ 20

INT RO D U C TIO N

Relying more on rhetoric than precedent, the petition

repeatedly decries how Priscilla Villarreal was supposedly arrested just for asking questions—a framing the

Fifth Circuit called “clever but misleading.”

Pet.App.11a. After all, this Court has repeatedly held

that when it comes to solicitation, questions can be a

crime—whether it be solicitation of another crime,

United States v. Hansen, 599 U.S. 762, 771 (2023); of improper campaign contributions, Williams-Yulee v. Florida Bar, 575 U.S. 433, 437 (2015); or even of legal clients,

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 449 (1978).

Because the First Amendment often permits States to

enforce such laws, the petition runs afoul of this Court’s

“repeated[]” command “not to define clearly established

law at a high level of generality” when considering qualified immunity. Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011).

Here, Respondents reasonably believed—indeed,

demonstrated to a neutral judge that there was probable

cause to believe—that Villarreal’s “questions” were for

the purpose of soliciting a leak of nonpublic information

to benefit herself in violation of Texas Penal Code section

39.06(c). On its face, section 39.06(c) is in line with this

Court’s precedent that permits States to limit access to

government information. Houchins, 438 U.S. at 14 (plurality op.); id. at 16 (Stewart, J., concurring in the judgment). And enforcement of it against Villarreal accords

with this Court’s rule that the press has no special privilege to violate generally applicable laws in the name of

newsgathering. Branzburg, 408 U.S. at 683.

Villarreal nevertheless insists that the Fifth Circuit’s

decision—that her First Amendment claim fails to overcome the officers’ qualified immunity—demands this

(1)

2

Court’s attention. To the contrary, as one commentator

put it, so long as “retention of [the relevant] information

is itself unlawful, and … the reporters are being punished not for the act of publication itself, but for the unlawful gathering of secret information, it is impossible to

find any precedent in [this] Court’s jurisprudence that

would recognize a First Amendment defense.” Stephen

I. Vladeck, Inchoate Liability and the Espionage Act:

The Statutory Framework and the Freedom of the Press,

1 HARV. L. & POL’Y REV. 219, 234 (2007) (second emphasis added). That should have ended the qualified-immunity inquiry. Instead, Villarreal tries (and fails) to show a

conflict with this Court’s precedent regarding the right

to publish lawfully obtained information (which section

39.06(c) does not prohibit) and the right against unreasonable search and seizure (which the officers did not violate).

Villarreal’s claim of a circuit split fares no better. The

cases she identifies all concern laws that themselves had

been held unconstitutional or whose unconstitutionality

was the natural outgrowth of existing precedent. Not one

addresses an arrest pursuant to a facially valid warrant

for violating a facially constitutional law.

Even if there were a conflict, this would be a poor vehicle to resolve it as several alternative grounds exist to

support the judgment. And Villarreal’s hyperbolic assertions that her inability to obtain damages would spell the

end of the First Amendment ignore that other branches

of both the state and federal governments are presumed

to understand and undertake in good faith their obligation to act consistent with the federal Constitution. And

if they do not, the federal courts provide a remedy. Such

a remedy is not available in this case because Villarreal

has not plausibly alleged anything more than a

3

“mistake[] in judgment” on behalf of law-enforcement

personnel. Butz v. Economou, 438 U.S. 478, 507 (1978).

And qualified immunity protects officers from liability

for such mistakes “whether the mistake is one of fact or

one of law.” Id. The Court should deny the petition for

certiorari.

ST ATE ME N T

I. Statutory Background

A. For decades, it has been Texas’s policy—embodied in its Public Information Act (PIA)—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.” Tex. Gov’t Code § 552.001(a). This policy

stems from “the fundamental philosophy of the American constitutional form of representative government

that … government is the servant and not the master of

the people.” Id. To effectuate that policy, the PIA defines

“public information” broadly and requires it to be produced promptly upon request. Id. §§ 552.002(a), .221(a).

At the same time, the PIA “recognizes that public interests are best advanced by shielding some information

from public disclosure.” Paxton v. City of Dallas, 509

S.W.3d 247, 249-50 (Tex. 2017). As provided by the PIA,

“[i]nformation is excepted” from public disclosure “if it is

information considered to be confidential by law, either

constitutional, statutory, or by judicial decision.” Tex.

Gov’t Code § 552.101. To that end, the PIA itself includes

over sixty categories of information that are excepted

from disclosure, ranging from attorney-client communications to law-enforcement investigations to records of

crime victims. Id. §§ 552.101-.163. Exceptions to disclosure can also be found outside of the PIA, including, for

example, information in cybersecurity reports and

4

abortion-reporting data. Id. § 2054.0591(b); Tex. Health

& Safety Code § 245.011(d).

Anyone may request that a governmental entity produce public information. Tex. Gov’t Code §§ 552.003(6),

.021. But if the governmental entity believes some or all

of the information is excepted from disclosure, it may

seek an opinion from the Attorney General regarding

whether the information must be disclosed. Id.

§ 552.301(a). Either the requestor or the government

agency may then challenge the Attorney General’s decision in court. Id. §§ 552.321, .324.

B. Helping to ensure that certain information held

by the government remains nonpublic, Texas Penal Code

section 39.06(c) makes it an offense to “solicit[] or receive[] 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.” To prevent

citizens from running afoul of the law simply by asking

questions, section 39.06(c) is a specific-intent crime: The

solicitor must have acted “with intent to obtain a benefit

or with intent to harm or defraud another.” Id. A “benefit” is “anything reasonably regarded as economic gain

or advantage.” Id. § 1.07(7).

For purposes of this statute, “information that has

not been made public” means “any information to which

the public does not generally have access, and that is prohibited from disclosure under” the PIA. Id. § 39.06(d).

Texas state courts have held that information “prohibited from disclosure” refers to the exceptions to disclosure in the PIA. Tidwell v. State, No. 08-11-00322-CR,

2013 WL 6405498, at *12 (Tex. App.—El Paso Dec. 4,

2013); State v. Ford, 179 S.W.3d 117, 123 (Tex. App.—

San Antonio 2005).

5

The State has been unable to find any precedential

decision holding section 39.06(c) unconstitutional either

facially or on facts similar to these. To the contrary, not

unlike federal courts, Texas courts “start with the presumption that the rest of the government, no less than

the judiciary, intends to comply with the Constitution”—

state and federal—and “when presented with competing

plausible interpretations of a statutory text,” they will

adopt the “construction that steers clear of such constitutional difficulties.” Borgelt v. Austin Firefighters

Ass’n, IAFF Loc. 975, 692 S.W.3d 288, 303 (Tex. 2024)

(quotation marks omitted) (citing, inter alia, Paxton v.

Longoria, 646 S.W.3d 532, 539 (Tex. 2022)). Consistent

with those principles, although two Texas trial courts

have concluded that section 39.06(c) is unconstitutionally

vague, the subsequent appeals were resolved on alternative grounds. Ford, 179 S.W.3d at 125; State v. Newton,

179 S.W.3d 104, 111 (Tex. App.—San Antonio 2005.

II. Factual Background

Villarreal, known locally as “Lagordiloca,” is a prolific vlogger who covers the news in Laredo using her cell

phone and a Facebook account with over 120,000 followers. 1 Pet.App.3a, 195a. Although unaffiliated with any

news organization, the New York Times has nonetheless

called her “arguably the most influential journalist in Laredo.” Pet.App.195a. Her admirers treat her to free

meals, and she occasionally receives fees for promoting

local businesses on her Facebook account. Pet.App.4a.

She has also used her account to solicit donations for new

equipment. Pet.App.4a.

1

See https://www.facebook.com/lagordiloca956/.

6

In 2017, using Laredo Police Officer Barbara Goodman as a backchannel source, Villarreal published the

name and occupation of a suicide victim. Pet.App.4a, 6a.

Several weeks later, she posted a live feed of a fatal traffic accident and again revealed the last name of a decedent. Pet.App.4a, 7a. At the time of her reports, the information had not been made public by the Laredo Police

Department. Pet.App.7a.

Receiving a tip that Officer Goodman had secretly

been communicating with Villarreal, LPD investigated

and discovered extensive communications between the

two—sometimes multiple times a day. Pet.App.5a-6a

(noting about 72 calls per month). After retrieving text

messages Officer Goodman had tried to delete, LPD suspended Goodman for twenty days. Pet.App.6a.

An officer with LPD also prepared probable-cause affidavits for Villarreal’s arrest for violations of Texas Penal Code section 39.06(c). Pet.App.6a-7a. They quoted

Villarreal’s text exchanges with Officer Goodman about

the suicide and accident victims, noting the information

had not previously been made public, and that Villarreal

gained popularity on Facebook. Pet.App.7a, 30a. The affidavits were approved by an assistant district attorney,

and a justice of the peace issued the warrants.

Pet.App.7a.

Villarreal voluntarily surrendered and was released

on bond the same day. Pet.App.7a. A Texas judge

granted her pretrial habeas petition, finding section

39.06(c) unconstitutionally vague. Pet.App.8a. The district attorney opted not to appeal. Pet.App.8a.

III. Procedural History

A. Following the dismissal of the charges, Villarreal

sued two members of the Webb County District Attorney’s office and multiple members of LPD (“Respondent

7

Officials”). Pet.App.8a. As relevant to the only claim presented here, Villarreal asserted that her arrest violated

the First Amendment because it was done in retaliation

for her reporting and because her text messages with Officer Goodman were protected speech. Pet.App.230a238a. Although Villarreal does not currently appear to

seek facial invalidation of section 39.06(c), Pet.App.262a265a, she does allege that it would have been evident to

“any reasonable official that the Statute was facially unconstitutional,” Pet.App.217a.

The district court dismissed the complaint under

Rule 12(b)(6) based on qualified immunity. Pet.App.8a,

101a-188a. At no time before the district court entered

its judgment did Villarreal inform Texas’s Attorney General, as required by 28 U.S.C. § 2403(b), that her complaint challenged the constitutionality of a state statute.

B. On appeal, a divided panel of the Fifth Circuit reversed, Villarreal v. City of Laredo (Villarreal I), 17

F.4th 532, 536 (5th Cir. 2021), noting that a dissenting

opinion was forthcoming. Id. at 536 n.* The majority concluded that it should have been “patently obvious to any

reasonable police officer” that arresting Villarreal violated her constitutional rights, id. at 540—in large part

because it concluded that section 39.06(c) was “grossly

and flagrantly unconstitutional,” id. at 541. Because the

Texas Attorney General still had not been notified that

the constitutionality of a state law was at issue, however,

the panel withheld the mandate for sixty days. Id. at 54647.

Without taking a position on the wisdom of prosecuting Villarreal under these facts, Texas’s Attorney General intervened to defend the constitutionality of section

39.06(c) and the availability of qualified immunity when

an officer has relied on a facially valid warrant. See

8

Cameron v. EMW Women’s Surgical Ctr., PSC, 595 U.S.

267, 277 (2022) (noting a sovereign’s inherent interest “in

the continued enforceability of its own statutes”).

After the Attorney General’s intervention, the panel

issued a new opinion, which concluded that section

39.06(c) was not “obviously unconstitutional.” Villarreal

v. City of Laredo (Villarreal II), 44 F.4th 363, 372 (5th

Cir. 2022). Although the panel still held that qualified immunity was unavailable, it did so based on its view that

no officer could have concluded that Villarreal intended

to receive a “benefit” from her conduct—she was motivated, not by economic gain, but by good journalism. Id.

at 372-73.

Chief Judge Richman dissented with respect to the

First Amendment ruling, arguing that the independentintermediary doctrine protected Respondent Officials

and that Villarreal’s arrest was based, not on protected

speech, but on violations of a facially constitutional statute. Id. at 390-91 (Richman, C.J., dissenting in relevant

part).

Because the State has never taken a position on

whether Villarreal’s conduct met the statute’s standards

as a matter of fact, the State did not seek en banc rehearing of the revised opinion. Respondent Officials did, however, seek and obtain such review, Pet.App.189a-190,

placing the constitutionality of section 39.06(c) back at

issue, Pet.App.217a, and the State’s interests back in

play, Cameron, 595 U.S. at 277. Contra Pet. 4 (implying

that the State was effectively a volunteer in the en banc

proceedings).

C. Although there were a number of separate writings, the en banc court held (9-7) that Respondent Officials were entitled to qualified immunity. Pet.App.3a. As

the majority summarized, “Villarreal was arrested on

9

the defendants’ reasonable belief, confirmed by a neutral

magistrate, that probable cause existed based on her

conduct in violation of a Texas criminal statute that had

not been declared unconstitutional.” Pet.App.11a. Because no controlling precedent put Respondent Officials

on notice that section 39.06(c) or its application to Villarreal violated the Constitution, qualified immunity was

appropriate. Pet.App.11a.

Specifically, the court first held that Respondent Officials reasonably believed that Villarreal violated section 39.06(c), pointing to precedent, statutes, and Attorney General opinions making certain information about

accident victims and investigations confidential.

Pet.App.15a-17a; e.g., Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 679 (Tex. 1976) (discussing a right to privacy over personal information);

Tex. Transp. Code § 550.065(f)(2)(A) (prohibiting release

of personal information in collision report); Tex. Att’y

Gen. OR2022-36798, 2022 WL 17552725, at *2 (2022)

(recognizing a privacy interest in information regarding

deceased relatives). Examining the warrant affidavits,

the majority found they sufficed to show probable cause

that state law had been violated. Pet.App.17a-21a.

The court expressly rejected that section 39.06(c) was

“obviously unconstitutional” as applied to Villarreal and

therefore could not be relied on by Respondent Officials.

Pet. App.22a-32a. The court reasoned that (1) statutes

are presumptively constitutional, (2) no state court had

held section 39.06(c) unconstitutional, and (3) the independent-intermediary doctrine shielded Respondent Officials from liability under such circumstances.

Pet.App.22a-32a.

The majority also considered the precedent identified

by Villarreal and rejected that it was sufficient to

10

overcome qualified immunity under this Court’s test.

Pet.App.34a-38a. Those cases, the court explained, concern the right to publish, which “is different” from seeking personal gain from soliciting and receiving information that may or may not later be published.

Pet.App.35a. Further, the majority noted that the First

Amendment does not guarantee journalists special access to information and that States are allowed to protect

nonpublic information from being released. Pet.App.35a37a (citing, inter alia, Branzburg and Houchins).

Without addressing—let alone distinguishing—this

Court’s holding that governments can protect information disclosure, the principal dissent adopted Villarreal’s theme that asking questions to government officials is so obviously constitutionally protected that Respondent Officials should have known it. Pet.App.67a75a.

RE A SO NS TO D E N Y THE PE T ITI O N

I. The Fifth Circuit’s Decision Does Not Conflict

with Precedent from Either This Court or

Another Court of Appeals.

“Whether an officer is authorized to make an arrest

ordinarily depends, in the first instance, on state law.”

DeFillippo, 443 U.S. at 36. Whether that arrest entitles

Villarreal to damages depends, in turn, on whether it violated a “legal principle [that] clearly prohibit[s] the officer’s conduct in the particular circumstances before

him.” District of Columbia v. Wesby, 583 U.S. 48, 63

(2018) (emphasis added). And those circumstances must

be defined with a “high ‘degree of specificity.’” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam)).

That is particularly so in areas where “[i]t is sometimes

difficult for an officer to determine how the relevant legal

doctrine”—here, the First Amendment’s impact on

11

crimes of solicitation—“will apply to the factual situation

the officer confronts.” Id. at 12.

To prevail under this standard, Villarreal must show

that Respondent Officials (1) violated a First Amendment right to obtain information that (2) would have

been apparent to any reasonable official at the time the

Respondent Officials acted. al-Kidd, 563 U.S. at 735. Villarreal has failed to show either for the same basic reason: Although this Court has held that the First Amendment protects the right of the press to publish information, it has never held the First Amendment guarantees the right to ask a government official to leak that

information. See Vladeck, supra at 234. Nor have the circuit courts that Villarreal identified in her petition.

A. The Fifth Circuit correctly applied this

Court’s precedent to the facts before it.

Rather than identify a case from this Court that applied the First Amendment to invalidate statutes criminalizing the leak of confidential information, Villarreal

cites various cases regarding the right to publish lawfully

obtained information and the requirements for warrants.

Neither is implicated here. Nor can Villarreal create a

certworthy issue by invoking the last resort of section

1983 plaintiffs facing a qualified-immunity defense: Hope

v. Pelzer, 536 U.S. 730 (2002), and its limited rule that

obvious constitutional violations are compensable even

without factually analogous precedent. Even Hope requires consideration of the particular circumstances of

the case. And Villarreal has not shown that every reasonable official would have known that (1) the First Amendment provided an as-applied defense to her violation of

section 39.06(c), and (2) he must disregard a facially valid

warrant given that defense.

12

1. Texas law does not prohibit merely asking

questions.

Apart from offering a paean to the press, Villarreal

spends much of her argument blurring two distinct concepts: the right to publish information and the ability to

obtain information for potential publication. To be sure,

“the press is not only an important, critical, and valuable

asset to society, but it is not easily intimidated.” Zurcher

v. Stanford Daily, 436 U.S. 547, 566 (1978). But that’s not

the only societal value at stake. Society cannot function

if the government cannot keep certain information confidential. To balance those competing interests, this Court

has consistently upheld the right to publish information

the press has lawfully obtained, e.g., Smith v. Daily Mail

Publ’g Co., 443 U.S. 97, 104 (1979), but refused to exempt

the press from those generally applicable laws,

Branzburg, 408 U.S. at 683. Only the latter interest is

relevant to this case because section 39.06(c) prohibits

certain forms of access—namely “solicit[ing] or receiv[ing] from a public servant”—certain nonpublic information for certain corrupt motives.

Villarreal assumes without discussion—let alone citation—that “solicits,” as used in section 39.06(c), includes

merely asking questions. But as this Court has repeatedly stated, a properly conducted First Amendment

analysis starts with “assess[ing] the state laws’ scope[:]

What activities, by what actors, do the laws prohibit or

otherwise regulate?” Moody v. NetChoice, LLC, 144

S. Ct. 2383, 2398 (2024). Although “solicit” can mean to

“elicit” information, as Villarreal seems to suggest, that

is generally considered a mistake, see Bryan A. Garner,

A DICTIONARY OF MODERN LEGAL USAGE 816 (2d ed.

1995) (describing this use of “solicit” as a malapropism).

Moreover, like this Court, Hansen, 599 U.S. at 775-78,

13

Texas courts are likely to take the narrower, more specialized interpretation drawn from criminal law—particularly where doing so may be necessary to avoid any potential constitutional problems, e.g., Longoria, 646

S.W.3d at 539 (citing with favor Solicitation, BLACK’S

LAW DICTIONARY (11th ed. 2019)); Page v. State, 492

S.W.2d 573, 576 (Tex. Crim. App. 1972).

In the criminal context, solicitation is more akin to incitement. See, e.g., Hansen, 599 U.S. at 772. Under the

Texas Penal Code, a person is criminally responsible for

an offense committed by another if, among other things,

“acting with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or

attempts to aid the other person to commit the offense.”

Tex. Penal Code § 7.02 (emphasis added). The Model Penal Code uses the terms “commands” and “encourages”

in its definition of criminal solicitation, Model Penal Code

§ 5.02 (2001), while Black’s defines the term as the “criminal offense of urging, advising, commanding, or otherwise inciting another to commit a crime,” Solicitation,

BLACK’S LAW DICTIONARY (11th ed. 2019).

This narrow understanding of “solicit” is further underscored by section 39.06’s statutory context. Specifically, it defines nonpublic information with respect to

Texas’s PIA, Tex. Penal Code § 39.06(d), which encourages individuals to ask for information. See supra pp.3-4.

Given that context, it highly unlikely that a Texas court

would conclude that merely asking for information that

ultimately cannot be released is a crime. See, e.g., Steger

& Bizzell, Inc. v. Vandewater Constr., Inc., 811 S.W.2d

687, 693 (Tex. App.—Austin 1991) (explaining that “solicit” is best understood to “imp[ly] personal petition and

14

importunity addressed to a particular individual to do

some particular thing”). 2

True, the conduct prohibited by section 39.06 is often

verbal in nature—as with any bar to solicitation. Hansen, 599 U.S. at 771 (“Neither solicitation nor facilitation

requires lending physical aid; for both, words may be

enough.”). 3 But “it has never been deemed an abridgement of freedom of speech or press to make a course of

conduct illegal merely because the conduct was in part

initiated, evidenced, or carried out by means of language,

either spoken, written, or printed.” Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 502 (1949).

With these principles in mind, the Fifth Circuit’s conclusion that Villarreal has not alleged a violation of a

clearly established First Amendment right does not conflict with this Court’s precedent. 4

At other stages of this litigation, Villarreal also contested

whether she received a “benefit” and whether the information was

nonpublic. Pet.App.17a-20a. Villarreal does not question the majority’s interpretation as a matter of state law, Pet. 22-23, and if she

did, the proper course would have been to certify the question to the

Texas Court of Criminal Appeals to “ensure that any conflict in this

case between state law and the First Amendment is not purely hypothetical.” McKesson v. Doe, 592 U.S. 1, 6 (2020). Villarreal has

never sought such relief.

2

Section 39.06(c) also prohibits “receiv[ing]” nonpublic information, which is not expressive conduct by the recipient.

3

By mentioning it only in a footnote (at 36 n.10), and not including it in her question presented, Villarreal has forfeited any claim

that she was arrested in retaliation for publishing the information.

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510

U.S. 27, 31-32 (1993) (per curiam). In any event, this case is a poor

vehicle to resolve that issue. See infra pp.30-31.

4

15

2. This Court has recognized a right to

publish information lawfully obtained, not

to obtain information unlawfully.

a. Barely referenced by Villarreal is this Court’s

precedent that holds “[t]he right to speak and publish

does not carry with it the unrestrained right to gather

information.” Zemel v. Rusk, 381 U.S. 1, 17 (1965). To the

contrary, because “[t]he Constitution itself is n[ot] a

Freedom of Information Act,” this Court has repeatedly

held that there is no First Amendment right to “have access to particular government information.” Houchins,

438 U.S. at 14 (plurality op.) (quoting Potter Stewart, Or

of the Press, 26 HASTINGS L.J. 631, 636 (1975)); id. at 16

(Stewart, J., concurring in the judgment); see also LAPD

v. United Reporting Publ’g Corp., 528 U.S. 32, 40 (1999).

As a result, “the government retains ample means of

safeguarding significant interests upon which publication may impinge.” Fla. Star v. B.J.F., 491 U.S. 524, 534

(1989).

At most, the Court has recognized a right to “gather

news ‘from any source by means within the law.’”

Houchins, 438 U.S. at 11 (plurality op.) (quoting

Branzburg, 408 U.S. at 681-82 (emphasis added)). That

is, the press does not have “special immunity from the

application of general laws.” Branzburg, 408 U.S. at 683

(quoting Associated Press v. NLRB, 301 U.S. 103, 132-33

(1937)). Thus, “[a]lthough stealing documents or private

wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for

such conduct, whatever the impact on the flow of news.”

Id. at 691. Indeed, just one Term after the Court famously permitted the publication of the Pentagon Papers, see N.Y. Times Co. v. United States, 403 U.S. 713

(1971) (per curiam), Branzburg said it would be

16

“frivolous” to claim that “the First Amendment, in the

interest of securing news or otherwise, confers a license

on either the reporter or his news sources to violate valid

criminal laws.” 408 U.S. at 691.

b. Texas Penal Code section 39.06(c) is such a “valid

criminal law[],” id., and represents how Texas’s “political

institutions” have “weigh[ed] the interests in privacy

with the interests of the public to know and of the press

to publish,” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496

(1975). As this Court explained nearly 50 years ago,

“[t]he enactment of [such] a law forecloses speculation by

enforcement officers concerning its constitutionality,”

and “[p]olice are charged to enforce [it] until and unless”

it is “declared unconstitutional.” DeFillippo, 443 U.S. at

38. As a result, an officer is “excus[ed] … from liability”

under section 1983 “for acting under a statute that he

reasonably believed to be valid” even if it is “later held

unconstitutional on its face or as applied.” Pierson v.

Ray, 386 U.S. 547, 555 (1967).

The only “possible exception” to this general rule is

“a law so grossly and flagrantly unconstitutional that any

person of reasonable prudence would be bound to see its

flaws.” DeFillippo, 443 U.S. at 38. Villarreal’s question

presented does not try to meet this high standard, and

for good reason. 5 Any claim that section 39.06(c) is facially unconstitutional would impose a heavy burden on

Villarreal, Moody, 144 S. Ct. at 2397—let alone a claim

that it is “flagrantly” so, DeFillippo, 443 U.S. at 38. Villarreal cannot meet that burden here because this Court

Although split in two pieces, Villarreal’s question presented

reflects a single inquiry: whether the Respondent Officials’ alleged

violation of the First Amendment was so obvious that they are not

entitled to immunity even absent binding case law from this Court

or the Fifth Circuit. See Pet. i.

5

17

has specifically stated that its prior caselaw has

“impl[ied] nothing about any constitutional questions

which might arise from a state policy not allowing access

by the public and press to various kinds of official records.” Cox Broad. Corp., 420 U.S. at 496 n.26.

Because there is “no controlling precedent” that section 39.06(c) is unconstitutional, and Villarreal’s conduct

violated the “presumptively valid” statute, Respondent

Officials “should not have been required to anticipate

that a court would later hold the [law] unconstitutional.”

DeFillippo, 443 U.S. at 38.

That rule applies with even greater force to Villarreal’s repeated assertion (e.g., at i, 2, 29) that officials

should be held liable for enforcing statutes “in ways” that

violate the Constitution. In substance, this argument

asks this Court to require officials, upon pain of losing

qualified immunity, to correctly predict as-applied constitutional defenses to valid statutes. But if officers are

not required to predict when a law will be held unconstitutional, DeFillippo, 443 U.S. at 37-38, they cannot be

held to predict when an application will be held unconstitutional—a question that, by its definition, depends on

“the factual situation the officer confronts,” Mullenix,

577 U.S. at 12. The Court should not limit qualified immunity as Villarreal suggests when no appellate court

has held section 39.06(c) unconstitutional either on its

face or in factually analogous circumstances. As the

Court has stated, “[s]ociety would be ill-served if its police officers took it upon themselves to determine which

laws are and which are not constitutionally entitled to enforcement.” DeFillippo, 443 U.S. at 38.

c. Villarreal attempts to obscure the issue by asserting (at 16-17) a right to engage in “routine newspaper reporting techniques” based on case law addressing the

18

press’s First Amendment right to publish information it

lawfully obtained. But this Court has recognized the distinction between “cases where information has been acquired unlawfully by a newspaper or by a source,” and

cases involving the “ensuing publication.” Bartnicki v.

Vopper, 532 U.S. 514, 528 (2001). Because the cases upon

which Villarreal relies turn entirely on the “ensuing publication,” they are inapposite to whether the State could

punish her when the “information has been acquired unlawfully.” Id. (emphasis omitted).

For example, Daily Mail—upon which Villarreal relies extensively—concerned a law that prohibited “publish[ing],” without a written court order, the name of a

child involved in certain court proceedings. 443 U.S. at

98-99 (quoting W. Va. Code § 49–7–3). The Court found

the law unconstitutional, holding that “[i]f the information is lawfully obtained … the state may not punish

its publication except when necessary to further an interest more substantial than is present here.” Id. at 104

(emphasis added). The Court explicitly limited its holding to that fact pattern, stating “[t]here is no issue before

us of unlawful press access to confidential judicial proceedings.” Id. at 105.

Florida Star reiterated this principle, punctuating

that “where a newspaper publishes truthful information

which it has lawfully obtained, punishment may lawfully

be imposed, if at all, only when narrowly tailored to a

state interest of the highest order.” 491 U.S. at 541 (emphasis added). The same is true for Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 311 (1977) (per

curiam) (permitting publication where there is “no evidence that petitioner acquired the information unlawfully”); Cox Broadcasting, 420 U.S. at 496 (“[T]he First

and Fourteenth Amendments will not allow exposing the

19

press to liability for truthfully publishing information released to the public in official court records.”); and Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

837 (1978) (“We are not here concerned with the possible

applicability of the statute to one who secures the information by illegal means and thereafter divulges it.”).

If anything, Villarreal’s remaining authority is even

more off-point as section 39.06(c) has nothing to do with

interrupting a police officer in the performance of his duties, City of Houston v. Hill, 482 U.S. 451, 466-67 (1987);

writing editorials, Bridges v. California, 314 U.S. 252,

270 (1941); or inflicting emotional distress, Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988). That each of

these cases involves the First Amendment does not establish a route around qualified immunity because a

near-Byzantine maze of overlapping doctrines and varying standards of scrutiny have developed around the

First Amendment over the last century. 6 Because “[t]he

dispositive question is ‘whether the violative nature of

particular conduct is clearly established,’” Mullenix,

577 U.S. at 12, Villarreal cannot avoid closer scrutiny of

her claim merely by invoking the First Amendment as a

talisman.

d. If there were any question that Villarreal’s abstract framing is too broad, it is put to rest by this

Court’s decision in Sause v. Bauer, 585 U.S. 957 (2018)

(per curiam). There, Sause alleged that officers prevented her from praying. Id. at 958. Acknowledging

there was “no doubt that the First Amendment protects

See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart,

J., concurring) (responding to this Court’s difficulty in defining obscenity with “I know it when I see it”); accord Expressions Hair

Design v. Schneiderman, 581 U.S. 37, 49 (2017) (Breyer, J. concurring) (finding the speech/conduct distinction unhelpful).

6

20

the right to pray,” the Court nevertheless recognized

that “there are clearly circumstances in which a police

officer may lawfully prevent a person from praying at a

particular time and place.” Id. at 959. And without knowing those circumstances, the Court concluded it was “impossible to analyze petitioner’s free exercise claim.” Id.

at 960.

So too here. Admittedly, this analysis is complicated

by the fact that Villarreal never actually identifies the

specific speech that she claims is protected, instead referring generally to her text messages without describing their content. Pet.App.212a-213a. Fortunately, the

Court not need undertake that analysis because apart

from reciting Judge Higginson’s concern that the magistrate may have been misled, Pet. 12, Villarreal does not

actually challenge the Fifth Circuit’s conclusion that the

warrant was factually accurate, Pet. 16 (asserting that

“the arrest warrant affidavits confirm[]” her account).

The Court must thus presume that conclusion to be correct when determining whether the Fifth Circuit’s decision correctly applied the First Amendment. See Yee v.

City of Escondido, 503 U.S. 519, 537 (1992).

The circumstances of Villarreal’s arrest—namely,

that she was arrested in accordance with a facially constitutional statute pursuant to a facially valid warrant—

preclude her from overcoming qualified immunity. As

commenters have noted for 30 years, “there is simply no

precedent for the proposition that the First Amendment

provides any defense to illicit acts of gathering the

news.” Vladeck, supra at 227; see also Timothy B. Dyk,

Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927, 928 (1992) (“[T]he Court has

yet to explicitly afford special protections to the newsgathering process.”).

21

3. Villarreal has not shown a violation of the

Court’s warrant precedent.

Villarreal next relies (at 18-21) on a trio of cases concerning Fourth and Fourteenth Amendment requirements for warrants to seize material arguably protected

by the First Amendment. But Villarreal has not pressed

any Fourth or Fourteenth Amendment claim in this

Court, presenting questions that concern only the First

Amendment. Pet. i. Her theory instead requires the

Court to create a new rule by analogizing to these cases.

But (1) a new rule is, by definition, not clearly established

for purposes of qualified immunity, and (2) to the extent

the Court wishes to draw the analogy, Respondent Officials complied with the Fourth and Fourteenth Amendment requirements identified.

a. Villarreal’s first two cases address whether a warrant is required and what information it must contain before an officer can seize allegedly obscene material in accordance with the Fourth and Fourteenth Amendments.

Marcus v. Search Warrants of Prop. at 104 E. Tenth St.,

367 U.S. 717 (1961); Roaden v. Kentucky, 413 U.S. 496

(1973). They stand for the proposition—which Texas

does not dispute—that where material to be seized may

or may not be protected by the First Amendment, a warrant must describe the material in sufficient detail so

that a judge can make a preliminary determination that

there is probable cause to think the material falls on the

unprotected side of the First Amendment line. Roaden,

413 U.S. at 506.

In Marcus, the Court invalidated warrants to seize

allegedly obscene material that were issued “on the

strength of the conclusory assertions of a single police

officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene,” and

22

“left to the individual judgment of each of the many police officers involved the selection of such magazines as

in his view constituted obscene publications.” 367 U.S. at

731-32 (cleaned up). The Court held that these procedures “lacked the safeguards which due process demands to assure nonobscene material the constitutional

protection to which it is entitled.” Id. at 731. In short, a

warrant for the seizure of allegedly obscene material

may not be issued “on the conclusory opinion of a police

officer that the books sought to be seized [are] obscene.”

Roaden, 413 U.S. at 502 (describing Marcus).

In Roaden, the Court extended Marcus to warrantless seizures of allegedly obscene material—specifically,

a sheriff’s warrantless seizure of a film that he determined to be obscene based on his observations at a drivein theater. Id. at 497-98. Because “[t]he seizure proceeded solely on a police officer’s conclusions that the

film was obscene,” without “afford[ing] a magistrate an

opportunity to ‘focus searchingly on the question of obscenity,’” the Court held the warrantless seizure unreasonable under the Fourth Amendment. Id. at 506.

Villarreal concedes (at 19-20) that these precedents

are not directly applicable because they addressed only

the seizure of papers. Thus, to even be relevant, the

Court would have to extend them to the seizure of persons. But “[t]he relevant inquiry is whether existing

precedent placed the conclusion that [Respondent Officials] acted unreasonably in these circumstances ‘beyond

debate.’” Mullenix, 577 U.S. at 13-14 (quoting al-Kidd,

563 U.S. at 741 (emphasis added)). Accordingly, it would

not reflect a conflict between the Fifth Circuit’s decision

and this Court’s precedent on the question of qualified

immunity. Sup. Ct. R. 10(a); accord Pearson v. Callahan,

555 U.S. 223, 234 (2009).

23

These cases go from distinguishable to borderline irrelevant when one considers an additional fact: As the en

banc majority noted—and Villarreal does not seem to

contest—unlike in Roaden, Respondent Officials obtained warrants for her arrest. Pet.App.6a-7a. And, unlike in Marcus, the warrants were supported by eightpage affidavits that quoted the allegedly First Amendment protected conversations between Villarreal and Officer Goodman, permitting the neutral magistrate to “focus searchingly” on the speech at issue, Roaden, 413 U.S.

at 506, and whether it crossed the legal line to solicitation, Pet.App.30a. At most, the state-court judge who reviewed the warrant application made “a reasonable mistake” regarding where to draw that line—not the type of

“unacceptable error indicating gross incompetence or

neglect of duty” that would give notice to a police officer

that he should not rely upon the magistrate’s judgment.

Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986).

b. If anything, Villarreal’s third case (at 19-20),

Stanford v. Texas, is more off point, as it concerned a

warrant “of a kind which it was the purpose of the Fourth

Amendment to forbid—a general warrant.” 379 U.S. 476,

480 (1965). The warrant authorized the search for and

seizure of what amounted to any document concerning

the Communist Party or its operations. Id. at 478-79. After discussing the English monarchy’s abuse of search

and seizure powers to suppress publications, id. at 48185, the Court held that “the constitutional requirement

that warrants must particularly describe the ‘things to

be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their

seizure is the ideas which they contain.” Id. at 485.

This Court has questioned whether there can be a

general warrant for the arrest of a person. See al-Kidd,

24

563 U.S. at 742-43. Assuming such a thing could exist,

Villarreal would at minimum need to directly challenge

the breadth of the arrest warrants by specifying how the

language of the warrant was overbroad in her pleadings.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (requiring “allegations plausibly suggesting (not merely

consistent with)” liability). But she did not.

Pet.App.193a-266a. The arrest warrants did not violate

Stanford or its underlying principles, and Villarreal still

has not shown a conflict with this Court’s precedent.

4. Hope won’t save Villarreal’s claim as there

is no obvious constitutional violation.

Stuck with the fact that “none of the [Court’s] cases

squarely governs the case here,” Mullenix, 577 U.S. at

13 (cleaned up), Villarreal opts for repeatedly declaring

her right to ask questions and asking this Court to find

that right obvious under Hope, 536 U.S. 730, and Taylor

v. Riojas, 592 U.S. 7 (2020) (per curiam). But Hope will

not save Villarreal’s claim because any constitutional violation is far from legally obvious.

Hope creates a narrow exception to the general rule

that a plaintiff seeking monetary damages for a constitutional tort must cite on-point precedent to defeat qualified immunity. 536 U.S. at 741. It recognizes the common-sense principle that because qualified immunity ultimately turns on notions of “fair notice,” and “general

statements of the law are not inherently incapable of giving fair and clear warning,” there are some circumstances 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.” Id. at 740-41. To prevent the exception from swallowing the rule, Hope itself made clear that the

25

obviousness of the application must be determined based

on “the specific conduct in question.” Hope, 536 U.S. at

741 (quoting United States v. Lanier, 520 U.S. 259, 271

(1997)).

Here, that “specific conduct” is arresting Villarreal,

not for asking questions in the abstract, but for soliciting

and receiving nonpublic information in violation of Texas

law. As discussed above, this Court’s precedent in

Houchins and Branzburg, among others, renders any

potential First Amendment violation far from “obvious”

when a member of the press has obtained information in

violation of a law that is presumed constitutional and has

never been held to be unconstitutional. See supra pp.1516. To the contrary, Professor Vladeck—hardly Texas’s

biggest fan—has recognized there is “a colorable argument that a reporter may be prosecuted … for soliciting

the unlawful removal of classified governmental information.” Vladeck, supra at 231. Although the nature of

the government’s interests may vary, the same argument would apply outside the national security context

to allow a State to protect against the leak of other confidential government information. See Branzburg, 408

U.S. at 683. Because any constitutional violation was far

from “beyond debate,” the Fifth Circuit’s conclusion that

Respondent Officials were entitled to qualified immunity

does not conflict with this Court’s caselaw. Mullenix, 577

U.S. at 14 (quoting al-Kidd, 563 U.S. at 741).

B. The Fifth Circuit’s ruling does not conflict

with decisions from other circuits.

Villarreal is also wrong (at 28-32) that the Fifth Circuit’s decision conflicts with those of other circuits. Not

one of those cases involved a statute regulating access to

government data or found a police officer liable for monetary damages because he relied on a facially valid

26

warrant based on a facially constitutional statute. As a

result, none demonstrates a split between the Fifth Circuit and another court of appeals “on the same important

matter.” Sup. Ct. R. 10(a).

1. The Sixth Circuit’s decision in Leonard v. Robinson concerned a public utterance alleged to violate laws

that were “either facially invalid, vague, or overbroad

when applied to speech (as opposed to conduct).” 477

F.3d 347, 356 (6th Cir. 2007). Specifically, a citizen was

arrested for violating state laws prohibiting obscenity,

blasphemy, and disorderly conduct when he uttered the

phrase “G-d damn” at a township board meeting. Id. at

351. Considering a subsequent Fourth Amendment

claim, the Sixth Circuit held that (1) one law had already

been declared unconstitutionally vague, see People v.

Boomer, 655 N.W.2d 255, 257 (Mich. Ct. App. 2002);

(2) another applied only to conduct and would be “flagrantly unconstitutional” if extended to speech; and

(3) the application of the third to the conduct at hand was

unconstitutional under Cohen v. California, 403 U.S. 15,

26 (1971). Leonard, 477 F.3d at 358-60.

To support her claim of a circuit split, Villarreal

cherry picks language from the Sixth Circuit’s analysis

of the final statute, which prohibited “mak[ing] or excit[ing] any disturbance or contention” at a public meeting. Id. at 360. In holding that no reasonable officer could

have believed uttering “G-d damn” disturbed the peace,

the Sixth Circuit cited six cases from this Court reversing convictions for disturbing or breaching the peace

based on protected speech. Id. at 360-61. In particular,

the Court relied on Street v. New York, where a protestor

stated, “We don’t need no damn flag,” after setting fire

to a flag in an outdoor protest, 394 U.S. 576, 591-92

(1969); and Cohen, where a protestor wore a jacket

27

saying “Fuck the Draft” in an indoor protest, 403 U.S. at

26. Although Leonard involved the word “damn” in an

indoor setting, the Sixth Circuit concluded that distinction made no constitutional difference. 477 F.3d at 359

(noting the “milder profanity” at issue).

Leonard is of little use from the outset because as already discussed, section 39.06(c) regulates access to

data—not publication (or public utterance) of that data.

Supra pp.15-19. Nor can the Court derive a broader principle about the obviousness of constitutional violations

because there is no body of caselaw analogous to Cohen

and its progeny upon which the Fifth Circuit could have

drawn, supra pp.16-19.

2. The Eighth Circuit’s decision in Snider v. City of

Cape Girardeau, 752 F.3d 1149 (8th Cir. 2014), and two

of the Tenth Circuit decisions involved specific applications of state statutes that had already been held unconstitutional. In Snider, a citizen was arrested for desecrating an American flag. Id. at 1154. True, the officers

obtained a warrant before making the arrest. Id. at 1157.

But there was a body of case law dating back decades

that would have given a reasonable officer cause to question the validity of that warrant. United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397

(1989). Indeed, this case law was so clear that the court

found it “fairly inexplicable” that neither the prosecutor

nor the magistrate who issued the warrant recognized it.

Snider, 752 F.3d at 1157. No such caselaw exists in this

case. Supra pp.15-19.

Two of the cases Villarreal cites from the Tenth Circuit also fall into that same category. In Jordan v. Jenkins, the Court denied qualified immunity because the

plaintiff was arrested for criticizing a police officer—conduct this Court had already held to be constitutionally

28

protected. 73 F.4th 1162, 1168-72 (10th Cir. 2023) (relying on Hill, 482 U.S. at 453-54). And Mink v. Knox, involved writing a parody rather than criticizing a cop, but

the principle was the same: Because such expression had

already been held to be constitutionally protected, the

defendant was not entitled to qualified immunity. 613

F.3d 995, 1005-06 (10th Cir. 2010) (relying on, inter alia,

Hustler Magazine, 485 U.S. at 51).

3. Finally, in Lawrence v. Reed, the defendant admitted that he violated clearly established law when he

towed 70 of plaintiff’s vehicles to a landfill without a warrant or hearing. 406 F.3d 1224, 1229-30 (10th Cir. 2005).

Nevertheless, he argued that qualified immunity was appropriate because a local ordinance authorized such a

seizure. Id. at 1231-33. The Tenth Circuit rejected that

argument, holding that the ordinance was “obviously unconstitutional” because it provided for no hearing at all—

a fundamental requirement of due process of which government officials should be aware. Id. at 1233. But again,

Villarreal has not argued that section 39.06(c) is obviously unconstitutional, so the Fifth Circuit’s decision is

consistent with Lawrence as well as the other authorities

upon which Villarreal’s claim of a circuit split rests.

II. This Case Is Not a Good Vehicle To Resolve Any

Hypothetical Conflict Because Other Grounds

Support the Judgment.

Even if there were a conflict between the Fifth Circuit and either this Court or any other circuit regarding

whether a State can constitutionally punish the recipient

as well as the perpetrator of a government leak, this is

far from an “ideal vehicle” to resolve it. Contra Pet. 32.

This Court has repeatedly emphasized that it “review[s]

judgments of the lower courts, not statements in their

opinions,” Amgen, Inc. v. Sanofi, 598 U.S. 594, 615 (2023)

29

(citing Black v. Cutter Laboratories, 351 U.S. 292, 297

(1956)), and that “[c]ourts should think carefully before

expending ‘scarce judicial resources’ to resolve difficult

and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the

case.’” al-Kidd, 563 U.S. at 735 (quoting Pearson, 555

U.S. at 236-37).

Because there are at least three additional

“ground[s] upon which to dispose of this case,” the “prudent exercise of this Court’s jurisdiction” suggests that

it should decline to resolve Villarreal’s constitutional

claims. Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193, 205 (2009) (quoting Escambia County v.

McMillan, 466 U.S. 48, 51 (1984) (per curiam)).

First, section 39.06(c) prohibits “solicit[ing] or receiv[ing]” nonpublic information with the intent to benefit oneself. (Emphasis added). By Villarreal’s own admission,

she

received

nonpublic

information,

Pet.App.212a-213a, which does not implicate her First

Amendment rights, see Vladeck, supra, at 234 (finding

no precedential support for a First Amendment defense

to the unlawful retention of classified information). Thus,

Respondent Officials had grounds to arrest her under

section 39.06(c) that did not allegedly infringe the First

Amendment.

Second, as the Fifth Circuit explained, the independent-intermediary doctrine represents an alternative

ground for judgment. Pet.App.29a-32a. Arising from the

Fourth Amendment context, the doctrine provides that

“the fact that a neutral magistrate has issued a warrant

is the clearest indication that the officers acted in an objectively reasonable manner.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). As noted above, Marcus

and Roaden already import the same concept into claims

30

sounding in the First Amendment. See supra pp.21-23.

Having found evidence that the Respondent Officials

complied with the doctrine’s prerequisites, Pet.App.30a,

the Fifth Circuit properly held that the Respondent Officials were entitled to the protection the doctrine affords, Pet.App.31a. 7

Third, to the extent that Villarreal has properly preserved her retaliation claim, but see supra p.14 n.4, she

fails to rebut the Fifth Circuit’s reasons for rejecting it.

Pet.App.39a. She cannot. As this Court has reaffirmed, a

retaliation plaintiff “must plead and prove the absence of

probable cause for the arrest,” Nieves v. Bartlett, 587

U.S. 391, 402 (2019), or provide “objective evidence that

he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech

had not been,” id. at 407. This Court recently held that it

would be improper to “demand … virtually identical and

identifiable comparators” to demonstrate retaliation, but

it emphasized that the Nieves exception remained

“slim.” Gonzalez v. Trevino, 144 S. Ct. 1663, 1667 (2024)

(per curiam).

Here, Villarreal fails to bring herself within that exception because the paragraphs from her complaint to

which she points (at 36 n.10) do not reflect “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.”

Trevino, 144 S. Ct. at 1667 (quoting Nieves, 587 U.S. at

406). Specifically, those pages allege only that section

For similar reasons, Villarreal is wrong (at 1, 18-19) that the

Fifth Circuit’s decision means that courts do not have to consider

First Amendment rights at all. The issues are intertwined precisely

because a First Amendment violation would vitiate the probable

cause necessary to support a Fourth Amendment seizure. E.g.,

Snider, 752 F.3d at 1157.

7

31

39.06(c) has never been enforced Pet.App.223a, 233a,

242a-243a, even though Respondent Officials “knew that

members of the local media regularly asked for and received information from LPD officials,” Pet.App.223a;

see also Pet.App.241a. Conspicuously absent are allegations that officers failed to prosecute when they knew local media “solicit[ed]” the leak of nonpublic information.

Without that additional element, there has been no

crime: There has been a PIA request, which Texas law

encourages. Supra pp.3-4.

Moreover, under Fifth Circuit precedent, a retaliation plaintiff must show that the defendant’s actions

“would chill a person of ordinary firmness from continuing to engage in that activity.” Keenan v. Tejeda, 290

F.3d 252, 258 (5th Cir. 2002). The Fifth Circuit concluded

Villarreal had not made that showing, Pet.App.39a, and

she has not challenged that conclusion here. Even if she

had, the issue would present nothing more than a factbound request for error correction of the type that this

Court declines to review. Stephen M. Shapiro et al., SUPREME COURT PRACTICE 508-09 (10th ed. 2013).

III. Courts Can Protect First Amendment Rights

While Respecting Qualified Immunity.

Finally, echoing the Fifth Circuit dissents, Villarreal’s petition is sprinkled (e.g., at 2) with hyperbolic assertions that this decision “spells the end of the First

Amendment.” Courts are not powerless to enforce First

Amendment rights, even if qualified immunity prohibits

damages in this case.

In particular, the dissents invite the Court to speculate that the legislative and executive branches of

Texas’s state government will conspire to limit the First

Amendment rights of citizens by passing and enforcing

viewpoint discriminatory laws, Pet.App.80a, or that

32

officials will wield constitutional laws as “cudgels” to silence speech, Pet.App.64a. But this Court will not presume bad faith on the part of the other branches of government, either at the federal, Clark v. Martinez, 543

U.S. 371, 381 (2005), or state levels, e.g., Illinois v. Krull,

480 U.S. 340, 351 (1987). If anything, Villarreal’s account

of how journalism has continued in Texas unimpeded for

a quarter century despite section 39.06 suggests that this

presumption is well founded. Pet.App.241a-242a.

Moreover, in the doomsday scenario predicted by the

dissents and adopted by Villarreal, courts are still able

to protect the First Amendment. After all, “grossly and

flagrantly” unconstitutional laws will provide no protection to government officials. DeFillippo, 443 U.S. at 38.

Nor will the presumption of constitutionality immunize

an official’s application of a facially valid law when that

application has been declared unconstitutional. Jordan,

73 F.4th at 1168-72. And retaliation claims remain a viable option for those arrested for their speech even if application of the law to those circumstances might otherwise be deemed permissible. Gonzalez, 144 S. Ct. 1663.

Nor are damages the only option. Declaratory-judgment actions can provide guidance on whether a law is

constitutional or being constitutionally applied. 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). And Ex parte

Young suits can restrain officials from taking unconstitutional actions. E.g., Book People, Inc. v. Wong, 91 F.4th

318 (5th Cir. 2024); Freedom From Religion Found. v.

Abbott, 955 F.3d 417 (5th Cir. 2020).

Finally, Villarreal’s related argument (at 25) that it is

unfair that officials will not be held responsible for First

Amendment violations unless a state court has held the

governing statute unconstitutional is nothing more than

a request to create narrower qualified-immunity rules

33

for First Amendment claims. But this Court has repeatedly held that “[q]ualified immunity gives government

officials breathing room to make reasonable but mistaken judgments about open legal questions.” al-Kidd,

563 U.S. at 743; see also Heien v. North Carolina, 574

U.S. 54, 57 (2014) (finding no Fourth Amendment violation when officer makes a reasonable mistake of law).

And Villarreal has pointed to reason to cabin that breathing room to non-First Amendment lawsuits—let alone a

reason sufficient to overcome the effects of stare decisis. 8

C O NC LU SIO N

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

AARON L. NIELSON

Solicitor General

BRENT WEBSTER

First Assistant Attorney

General

LANORA C. PETTIT

Principal Deputy Solicitor

General

Counsel of Record

BETH KLUSMANN

Assistant Solicitor General

SEPTEMBER 2024

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Lanora.Pettit@oag.texas.gov

(512) 936-1700

Similar considerations defeat Villarreal’s statutory argument

(at 26) that section 1983 makes an official liable if he deprives someone of a constitutional right “under color of any statute.”

8