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

NO. 25-29

IN THE

Supreme Court of the United States

PRISCILLA VILLARREAL,

Petitioner,

v.

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

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF YOUNG AMERICA’S FOUNDATION

AND MANHATTAN INSTITUTE AS AMICI

CURIAE IN SUPPORT OF PETITIONER

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

KARIN SWEIGART

MATTHEW SARELSON

DHILLON LAW GROUP

177 Post Street, Suite 700

San Francisco, CA 94108

(415) 433-1700

RORY T. GRAY

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

NE, Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

rgray@adflegal.org

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

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

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

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

I.

The decision below gave short shrift to the

First

Amendment,

Ms.

Villarreal’s

allegations, and the Court’s GVR order. ............. 4

II. Ms. Villarreal’s First Amendment rights

were clearly established and obvious at the

time of her arrest. ................................................ 8

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

established for decades. ................................ 8

B. Ms. Villarreal’s arrest was obviously

unconstitutional in light of the First

Amendment’s text and principles long

established by this Court’s decisions. ......... 11

III. Officials’ care and deliberation in jailing

Ms. Villarreal for her reporting makes a

grant

of

immunity

especially

inappropriate. .................................................... 14

CONCLUSION ......................................................... 16

ii

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635 (1987)............................................ 11

Branzburg v. Hayes,

408 U.S. 665 (1972)...................................... 6, 8–9

Brosseau v. Haugen,

543 U.S. 194 (2004)............................................ 12

Citizens United v. FEC,

558 U.S. 310 (2010).............................................. 8

City of Lakewood v. Plain Dealer Publishing

Company,

486 U.S. 750 (1988)............................................ 10

First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978).............................................. 9

Florida Star v. B.J.F.,

491 U.S. 524 (1989)........................................ 9–10

Graham v. Connor,

490 U.S. 386 (1989)............................................ 14

Griswold v. Connecticut,

381 U.S. 479 (1965)............................................ 12

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021)........................................ 15

Hope v. Pelzer,

536 U.S. 730 (2002)............................................ 11

iii

Houchins v. KQED, Inc.,

438 U.S. 1 (1978).................................................. 9

In re Express-News Corp.,

695 F.2d 807 (5th Cir. 1982) ............................... 6

Kisela v. Hughes,

584 U.S. 100 (2018)............................................ 12

Landmark Communications, Inc. v. Virginia,

435 U.S. 829 (1978)............................................ 10

Lozman v. City of Riviera Beach,

585 U.S. 87 (2018).............................................. 14

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)............................................ 11

Lund v. City of Rockford,

956 F.3d 938 (7th Cir. 2020) ............................... 7

Malley v. Briggs,

475 U.S. 335 (1986).............................................. 6

Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue,

460 U.S. 575 (1983).......................................... 5–6

Novak v. City of Parma,

33 F.4th 296 (6th Cir. 2022) ................................ 7

Pell v. Procunier,

417 U.S. 817 (1974)........................................ 9–10

Reichle v. Howards,

566 U.S. 658 (2012).............................................. 6

iv

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980).............................................. 8

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021).......................................... 11–12

Sause v. Bauer,

585 U.S. 957 (2018).................................... 5–6, 13

Sause v. Bauer,

859 F.3d 1270 (10th Cir. 2017).......................... 13

Siegert v. Gilley,

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

Smith v. Daily Mail Publishing Company,

443 U.S. 97 (1979).......................................... 9–10

Stringer v. County of Bucks,

141 F.4th 76 (3d Cir. 2025) ................................. 4

Taylor v. Riojas,

592 U.S. 7 (2020)................................................ 11

United Mine Workers of America, District 12 v.

Illinois State Bar Association,

389 U.S. 217 (1967)........................................ 5, 12

Villareal v. City of Laredo,

44 F.4th 363 (5th Cir. 2022) .......................... 5, 15

Villarreal v. City of Laredo,

52 F.4th 265 (5th Cir. 2022) .............................. 15

v

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council,

425 U.S. 748 (1976).............................................. 9

Wearry v. Foster,

52 F.4th 258 (5th Cir. 2022) .............................. 15

Wesley v. Campbell,

779 F.3d 421 (6th Cir. 2015) ............................... 4

White v. Pauly,

580 U.S. 73 (2017).............................................. 12

Young America’s Foundation v. Kaler,

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

Young America’s Foundation v. Kaler,

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

Constitutional Provisions

U.S. Const. amend. I ...................................... 3, 12–13

U.S. Const. art. VI, cl. 2 ......................................... 5–6

1

INTEREST OF AMICI CURIAE 1

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

increasing numbers of young Americans understand

and are inspired by the ideas of individual freedom, a

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

trains budding journalists to be truth-seekers who are

ethical and bold in exercising their First Amendment

rights.

YAF leads the Conservative Movement on

campuses throughout the country by sponsoring

campus lectures and other activities, which often

results in conflict with university leaders who

disagree with YAF’s ideas. Often, those conflicts

result in First Amendment litigation in which

qualified immunity plays a major role. E.g., Mot. to

Dismiss, Johnson v. University of Colo., No. 1:25-cv00390 (D. Colo. June 6, 2025), ECF No. 41; Young

America’s Found. v. Kaler, 482 F. Supp. 3d 829, 856–

66 (D. Minn. 2020), vacated by 14 F.4th 879 (8th Cir.

2021). YAF has a significant interest in ensuring that

officials who commit obvious violations of the First

Amendment don’t obtain qualified immunity.

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

and no person other than amici and their counsel made any

monetary contribution intended to fund the preparation or

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

as required by Supreme Court Rule 37.2.

2

YAF’s strong interest in this case is magnified by

its National Journalism Center. Over the last 45

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

combat bias in the mainstream media. YAF also has

a significant interest in protecting those journalists’

First Amendment rights.

The Manhattan Institute for Policy Research is a

nonpartisan public policy research foundation whose

mission is to develop and disseminate new ideas that

foster greater economic choice and individual

responsibility. To that end, it has historically

sponsored scholarship supporting the rule of law and

opposing government overreach, including in the

marketplace of ideas.

Amici file this brief to emphasize that qualified

immunity doctrine was never intended to shield

government officials, especially at the pleadings

stage, who allegedly plan and execute a clear-cut

violation of First Amendment rights.

3

SUMMARY OF THE ARGUMENT

By granting Respondents qualified immunity

after they arrested Petitioner Villarreal for her

protected journalistic activities, the decision below

misapplied precedent, distorted constitutional standards, and undermined core First Amendment rights.

First, the opinion started from the wrong baseline

and elevated an obscure Texas statute above the

Constitution, contravening clear precedent. The First

Amendment’s guarantees limit state law, not the

other way around.

Second, for at least four decades this Court has

protected routine news-gathering activities under the

First Amendment. The opinion’s failure to recognize

these well-established protections erodes essential

free-speech and free-press rights.

Third, the ruling below misapplies qualified

immunity by demanding a factually identical

precedent to defeat it—a far stricter standard than

this Court requires. Plus, the deliberate nature of

officials’ actions here undermines any claim to

immunity; this case doesn’t involve split-second

decisions under onerous conditions that coincidentally hinder rights. The opinion’s narrow

approach conflicts with that of this Court and other

circuits, granting officials a free pass to violate clearcut First Amendment rights.

This Court should grant certiorari and reverse,

while reaffirming the First Amendment’s robust

constitutional safeguards for “the freedom of speech,

or of the press.” U.S. Const. amend. I.

4

ARGUMENT

I.

The decision below gave short shrift to the

First Amendment, Ms. Villarreal’s allegations, and the Court’s GVR order.

On remand, the en banc court of appeals—with

minimal process or explanation—ruled against Ms.

Villarreal again, reinstating its prior decision nearly

wholesale. Pet.App.2a–4a. The First Amendment,

Ms. Villarreal’s allegations, and the Court’s GVR

order suggested the opposite result.

Qualified immunity should not be invoked lightly,

particularly at the pleadings stage and especially

when basic free-speech and free-press rights are at

stake. E.g., Stringer v. County of Bucks, 141 F.4th 76,

85–86 (3d Cir. 2025); Wesley v. Campbell, 779 F.3d

421, 433–34 (6th Cir. 2015). Regrettably, the opinion

below did so, inverting the standard of review in the

process. Rather than accept her plausible “allegations

… as true,” Siegert v. Gilley, 500 U.S. 226, 227 (1991),

the opinion overlooked Ms. Villarreal’s claims that

officials tainted the magistrate’s probable cause

determination—a central issue in this case.

Pet.App.52a; accord id. at 21a (Higginson, J.,

dissenting) (dismissing the retaliation claim hinges

on “probable cause to arrest” Ms. Villarreal, but she

alleges “bad probable cause,” which just like “[no]

probable cause” renders dismissal at the pleading

stage inappropriate).

That is a significant error. On a motion to dismiss,

Ms. Villarreal’s burden is minimal: she must show

that the complaint “may be understood to state [First

or] Fourth Amendment claims that could not properly

be dismissed for failure to state a claim.” Sause v.

5

Bauer, 585 U.S. 957, 960 (2018) (per curiam)

(emphasis added).

Six years of litigation have shown that Ms. Villarreal’s allegations can be understood that way, as

evidenced by six Fifth Circuit panel majority or en

banc dissenting opinions. 2 If Ms. Villarreal’s meticulous allegations can be dismissed at the pleading

stage, few First Amendment claims will make it to

discovery in the Fifth Circuit, and officials will enjoy

free rein to flout the Constitution. Pet.21.

The decision below reached the wrong outcome

because it focused on applying a state law, Texas

Penal Code § 39.06(c), rather than the clear freespeech and free-press implications of doing so.

Pet.App.34a–43a. But qualified immunity doesn’t

allow officials to disregard the Constitution, which is

“the supreme Law of the Land.” U.S. Const. art. VI,

cl. 2; accord Sause, 585 U.S. at 959. “[R]egulations

aimed at proper governmental concerns can restrict

unduly the exercise of rights protected by the First

Amendment.” Minneapolis Star & Tribune Co. v.

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

(1983); accord United Mine Workers of Am., Dist. 12 v.

Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967)

(“laws which actually affect the exercise of [First

Amendment] rights cannot be sustained merely

because they were enacted for the purpose of dealing

with some evil within the State’s legislative

competence ….”). And when state law and the

2 Pet.App.19a (Higginson, J., dissenting); id. at 64a–67a (Graves,

J., dissenting); id. at 69a–70a (Higginson, J., dissenting); id. at

83a–88a (Willett, J., dissenting); id. at 89a–91a (Ho, J.,

dissenting); Villareal v. City of Laredo, 44 F.4th 363, 371–73 (5th

Cir. 2022).

6

Constitution collide, the Constitution prevails.

Minneapolis Star, 460 U.S. at 592–93; U.S. Const. art.

VI, cl. 2; Sause, 585 U.S. at 959.

Prior to Ms. Villarreal’s arrest, both this Court

and the Fifth Circuit held “that news-gathering is

entitled to [F]irst [A]mendment protection, for

‘without some protection for seeking out the news,

freedom of the press could be eviscerated.’” In re

Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982)

(quoting Branzburg v. Hayes, 408 U.S. 665, 681

(1972)) (emphasis added). So no reasonable official

would apply § 39.06(c) to Ms. Villarreal without

considering her free-speech and free-press rights.

Accord Pet.15, 17–20. And Ms. Villarreal’s complaint

“may be understood to state [First or] Fourth

Amendment claims that could not properly be

dismissed.” Sause, 585 U.S. at 960. It’s quite plausible

that no official “of reasonable competence” would have

“requested the warrant[s]” for Ms. Villarreal’s arrest

in the first place. Malley v. Briggs, 475 U.S. 335, 346

n.9 (1986); accord Pet.24–25.

The opinion below did not grapple with these

issues on remand, merely citing Reichle v. Howards,

566 U.S. 658 (2012), and two circuit rulings where

probable cause plainly supported plaintiffs’ arrests

for non-speech crimes. Pet.App.3a–4a. But those cases

are materially different. Whereas the Reichle plaintiff

didn’t “challenge the Court of Appeals’ probable-cause

determination,” 566 U.S. at 662 n.3, Ms. Villarreal

does on strong First Amendment grounds, e.g.,

Pet.23–25, 29–31. And the Sixth and Seventh Circuit

didn’t rule on “similar facts.” Pet.App.4a. They

applied Reichle to retaliation claims where probable

cause clearly supported the plaintiff’s arrest for

generally unprotected activity, including using “a

7

computer to disrupt or impair police functions,”

Novak v. City of Parma, 33 F.4th 296, 303 (6th Cir.

2022), and “driving the wrong way on a one-way

street,” Lund v. City of Rockford, 956 F.3d 938, 942

(7th Cir. 2020). But here, officials sought to arrest Ms.

Villarreal for asking a police officer questions about a

matter of public concern and reporting what the

officer volunteered, which is generally protected by

the First Amendment. Pet.26.

The opinion below tried to fit a square peg into a

round hole by ignoring the question of whether

probable cause supported Ms. Villarreal’s arrest. But

Novak and Lund acknowledge that officers can’t use

protected speech to show probable cause that a crime

has been committed. E.g., Novak, 33 F.4th at 304

(“Protected speech cannot serve as the basis for

probable cause.”) (citation modified); Lund, 956 F.3d

at 947 (explaining officers didn’t “arrest[ ] Lund solely

for his First Amendment activity”). So those decisions

conflict with the opinion’s probable-cause ruling here,

which never considered whether asking factual

questions and publishing an officer’s willing

responses is protected by the First Amendment.

Pet.App.34a–43a.

The opinion’s myopic focus on state law transforms qualified immunity into a nearly impenetrable

bar to First Amendment claims against law enforcement. Pet.36–38. This Court should grant plenary

review and reverse the grant of qualified immunity.

Alternatively, the Court should issue a per curiam

reversal because the ruling below directly contradicts

Sause. Infra pp.12–14. Either way, the Court should

allow Ms. Villarreal’s claims to proceed to discovery.

8

II. Ms. Villarreal’s First Amendment rights

were clearly established and obvious at the

time of her arrest.

The opinion below misjudged qualified immunity

doctrine twice over. This Court’s precedent clearly

established Ms. Villarreal’s free-speech and freepress rights when law enforcement officials schemed

to arrest her and put her in jail for seeking and

reporting factual information about a police matter.

And those constitutional protections were obvious in

light of the First Amendment’s text and principles

long established by this Court’s decisions.

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

Ms. Villarreal’s free-speech and free-press rights

have been clearly established for over 40 years. The

First Amendment protects the “right of citizens to

inquire, to hear, to speak, and to use information.”

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

These rights extend to “news gathering,” which

“qualif[ies] for First Amendment protection” to

prevent “freedom of the press” from being

“eviscerated.” Branzburg, 408 U.S. at 681; accord

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

576 (1980) (acknowledging “a right to gather

information” (quoting Branzburg, 408 U.S. at 681)).

So when Respondents carried out Ms. Villarreal

arrest, the First Amendment’s text and this Court’s

decisions made four principles clear.

First, the First Amendment protects “routine

newspaper reporting techniques,” such as asking

questions of individuals—including government

9

officials—to gather information from willing sources

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

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

U.S. 524, 538 (1989) (protecting a “routine newspaper

reporting technique” and explaining that once

officials place private “information in the public

domain,” it’s up to reporters “what to publish or

broadcast”) (citation modified). So journalists are

“free to seek out” and request information from

“public officials[ ] and [government] personnel,”

including police officers. Houchins v. KQED, Inc., 438

U.S. 1, 15 (1978) (plurality opinion); accord id. at 32

(Stevens, J., dissenting) (positing even greater constitutional “protection for the acquisition of information

about the operation of public institutions”).

Second, journalists’ “use of confidential sources …

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

681. Reporters are “free to seek out sources of

information not available to members of the general

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

They are not limited to official channels. Indeed, a

“free press cannot be made to rely solely upon the

sufferance of government to supply it with

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

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

(government can’t “limit[ ] the stock of information

from which members of the public may draw”).

Third, whether there is a related financial benefit

from breaking news doesn’t change the analysis.

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

carried in a form that is ‘sold’ for profit.” Virginia

State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748, 761 (1976). The same is true of

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

10

First Amendment protection is not diminished”

whether “speech is sold” or “given away.” City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

756 n.5 (1988).

Finally, the government has ample tools to

prevent leaks. But if those measures fail, the

government can’t punish journalists for seeking,

receiving, or publishing information they obtain via

routine reporting techniques without satisfying strict

scrutiny. Florida Star, 491 U.S. at 533–34 (state

officials can’t punish the publication of “lawfully

obtain[ed] truthful information” unless they’re

“further[ing] a state interest of the highest order”)

(citation modified); Smith, 443 U.S. at 103–04 (“[i]f

the information is lawfully obtained …, the state may

not punish its publication” absent a compelling

interest). Few interests will outweigh journalists’

right to speak and the public’s right to receive

“information and ideas [that] are published.” Pell, 417

U.S. at 832. The government may punish the leaker—

not the journalist. Florida Star, 491 U.S. at 535

(“[W]here the government has made certain

information publicly available, it is highly anomalous

to sanction persons other than the source of its

release.”); Landmark Commc’ns, Inc. v. Virginia, 435

U.S. 829, 837 & n.10 (1978) (government could punish

“Commission members and staff employees” for leaks

but not “third persons,” such as reporters).

The lower court ignored these First Amendment

principles—twice. It allowed officials to punish Ms.

Villarreal for using routine reporting techniques,

Pet.App.39a–41a; going outside of official police

channels, id. at 26a, 33a, 39a; potentially deriving

meager financial rewards from her online reporting,

11

id. at 26a, 40a; and targeting a citizen journalist who

merely asked questions rather than the police officer

who leaked information, id. at 38a–41a. All of this

violates the First Amendment’s text and the Court’s

established precedent. So qualified immunity doesn’t

apply, especially at the pleadings stage where courts

accept Ms. Villarreal’s allegations as true and draw

all reasonable inferences in her favor. Lujan v.

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

B. Ms. Villarreal’s arrest was obviously unconstitutional in light of the First

Amendment’s text and principles long

established by this Court’s decisions.

Certain government actions are so “obvious[ly]”

unconstitutional, Rivas-Villegas v. Cortesluna, 595

U.S. 1, 6 (2021) (per curiam), or “egregious,” Taylor v.

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

qualified immunity dissolves without a factually

analogous case on the books. This obviousness

exception is associated with Hope v. Pelzer, 536 U.S.

730, 741 (2002), which explained that “a general

constitutional rule already identified in the decisional

law may apply with obvious clarity to the specific

conduct in question.” But the exception actually

predates Hope. E.g., Anderson v. Creighton, 483 U.S.

635, 640 (1987) (plaintiffs may overcome qualified

immunity without showing that “the very action in

question has previously been held unlawful”).

The First Amendment’s text, as well as enduring

principles established by this Court’s decisions,

obviously protected Ms. Villarreal’s questions

regarding law-enforcement matters and publication

of factual information freely disclosed by an officer.

12

The Constitution doesn’t bar government from

“abridging the freedom of speech, or of the press” for

nothing. U.S. Const. amend. I; accord Griswold v.

Connecticut, 381 U.S. 479, 482 (1965) (states can’t

“contract the spectrum of available knowledge,” as

“[t]he right of freedom of speech and press includes

not only the right to utter or to print, but … the right

to receive” information). The People can’t “petition the

Government for a redress of grievances” unless they

know what those grievances are, often via protected

reporting. U.S. Const. amend. I; accord United Mine

Workers, 389 U.S. at 222 (the right to petition is “intimately connected” with “free speech and free press”).

The reinstated decision below conflicts with both

text and precedent, all but erasing the obviousness

exception in First Amendment cases that involve free

exercise, free speech, free press, free assembly, free

association, or the right to petition. Pet.App.54a–60a.

In particular, the lower court refused to accept that

“the ‘obvious’ … exception applies broadly to arrests

that may impinge on First Amendment rights.” Id. at

49a (emphasis added). Obviousness, the opinion said,

is “no more than a possible exception,” id. at 48a, or

one narrowly confined to “Eighth Amendment cases,”

id. at 55a. 3 But that conclusion is dangerously wrong,

and this Court should grant review to say so.

Sause is directly on point. There, two police

officers allegedly responded to a noise complaint,

3 This Court often raises the obviousness exception in Fourth

Amendment cases, which shows the exception isn’t an Eighth

Amendment peculiarity. E.g., Rivas-Villegas, 595 U.S. at 6;

Kisela v. Hughes, 584 U.S. 100, 105 (2018) (per curiam); White v.

Pauly, 580 U.S. 73, 79–80 (2017) (per curiam); Brosseau v.

Haugen, 543 U.S. 194, 199–200 (2004) (per curiam).

13

entered Ms. Sause’s apartment, engaged in abusive

conduct, and cited Sause on manufactured charges of

disorderly conduct and interfering with law

enforcement. Sause v. Bauer, 859 F.3d 1270, 1273

(10th Cir. 2017). Meanwhile, the officers allegedly

ordered Ms. Sause, who was frightened, to get off her

knees and cease praying. Ibid. Ms. Sause sued the

officers for violating her First Amendment rights. The

district court dismissed her complaint, and the Tenth

Circuit affirmed based on qualified immunity,

reasoning that Ms. Sause didn’t “identify a single case

in which [the Tenth Circuit], or any other court for

that matter, has found a First Amendment violation

based on a factual scenario even remotely resembling

the one … here.” Id. at 1275.

Ms. Sause appealed to this Court, claiming “that

the absence of a prior case involving the unusual

situation alleged to have occurred … does not justify

qualified immunity.” Sause, 585 U.S. at 959. This

Court agreed and reversed the Tenth Circuit based on

the obviousness exception. Id. at 959–60. “Prayer

unquestionably constitutes the ‘exercise’ of religion.”

Id. at 959. So a reasonable officer could not “doubt

that the First Amendment protects the right to pray.”

Ibid. Accordingly, the Court reversed the grant of

qualified immunity at the pleadings stage and

remanded for further proceedings. Id. at 960.

The same logic applies here. No reasonable

official would doubt that Ms. Villarreal’s routine

journalism constituted an exercise of her “freedom of

speech, or of the press.” U.S. Const. amend. I. Yet the

decision below ignored the First Amendment’s text

and turned Sauce on its head, saying that decision

somehow supports granting qualified immunity here.

14

Pet.App.49a, 56a. Not so. Sauce illustrates that

qualified immunity isn’t a “get out of jail free” card for

egregious constitutional infractions that no one has

tried before. Only this Court can remedy the lower

court’s excusal of clear-cut First Amendment

violations, which is irreconcilable with decisions by

the Sixth, Eighth, and Tenth Circuits. Pet.33a–36a.

III. Officials’ care and deliberation in jailing Ms.

Villarreal for her reporting makes a grant of

immunity especially inappropriate.

Officials’ care and deliberation in plotting to jail

and humiliate Ms. Villarreal deserves special

mention. Qualified-immunity typically protects law

enforcement officers making split-second decisions in

the heat of the moment. E.g., Lozman v. City of

Riviera Beach, 585 U.S. 87, 98 (2018) (“In deciding

whether to arrest, police officers often make splitsecond judgments.”); Graham v. Connor, 490 U.S.

386, 397 (1989) (law enforcement are often involved

in “circumstances that are tense, uncertain, and

rapidly evolving”). But there was no exigency or splitsecond decision-making here.

Respondents allegedly spent six months formulating a scheme to punish Ms. Villareal for her reporting,

choosing to leverage a never-before-used provision to

achieve their unconstitutional ends. Pet.1, 7–9, 31,

39. In other words, law enforcement officials plotted

with legal counsel to find some reason—any reason—

to arrest and humiliate a critic, opting to dust off an

obscure state law and ignore the Constitution in the

process. Id. at 1, 8; Pet.App.90a–91a. No justification

exists for granting officials “who have time to make

calculated choices about … [their] unconstitutional”

15

actions “the same [qualified-immunity] protection as

a police officer who makes a split-second decision to

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

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

respecting the denial of cert.).

The complaint alleges that disgruntled officials

engaged in a premeditated attack on Ms. Villareal’s

reporting. Pet.7–9. Yet the opinion below ignored this

key consideration, despite several judges highlighting

it. E.g., Pet.App.5a–6a, 13a–16a (Oldham, J., concurring) (questioning whether qualified immunity’s

rationale applies in cases like this); id. at 83a (Willett,

J., dissenting) (“This was not the hot pursuit of a

presumed criminal; it was the premeditated pursuit

of a confirmed critic.”); Villarreal v. City of Laredo, 44

F.4th 363, 371 (5th Cir. 2022), vacated by 52 F.4th 265

(5th Cir. 2022) (“There is a big difference between

‘split-second decisions’ by police officers and ‘premeditated plans to arrest a person for her journalism,

especially by local officials who have a history of

targeting her because of her journalism.’”).

This Court should grant review to clarify that

qualified immunity isn’t a “one-size-fits-all doctrine.”

Hoggard, 141 S. Ct. at 2421 (Thomas, J., statement

respecting the denial of cert.). Officials “deserve some

measure of deference” when they’re “forced to make

split-second, life-and-death decisions.” Wearry v.

Foster, 52 F.4th 258, 259 (5th Cir. 2022) (per curiam)

(Ho, J., concurring in denial of reh’g en banc). But

when “officials make the deliberate and considered

decision to trample on a citizen’s constitutional rights,

they deserve to be held accountable.” Ibid.

16

CONCLUSION

Qualified immunity doesn’t shield officials who

choose to violate established and obvious First

Amendment rights in an attack planned with legal

counsel’s assistance over months. For all the above

reasons and those presented by Petitioner, the Court

should grant review.

Respectfully submitted,

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

KARIN M. SWEIGART

MATTHEW SARELSON

DHILLON LAW GROUP

177 Post Street, Suite 700

San Francisco, CA 94108

(415) 433-1700

AUGUST 2025

RORY T. GRAY

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals

Rd. NE

Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

rgray@adflegal.org

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000