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, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION IN SUPPORT OF

PETITIONER

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

August 6, 2025

i

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT .............................................. 1

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

I.

QUALIFIED IMMUNITY SHOULD NOT SHIELD

CONSTITUTIONAL INFRINGEMENT IN SLOW-MOVING

FIRST AMENDMENT CASES. ....................................4

II. THE FIRST AMENDMENT IS THE FIRST MOVER

BEFORE EXCEPTIONS ARE APPLIED. .......................9

A.

Private Individuals Do Not Bear the Burden of

Proving They Are Not Criminals for Speaking.

......................................................................... 11

B.

Prior Restraints Are Presumed To Be

Unconstitutional. ............................................ 14

C.

Publishing Is a Right, Not a Benefit To Be

Bestowed by the State. ................................... 17

D.

Section 1983 Does Not Provide a Bypass

Option for Violating Constitutional Rights. .. 19

CONCLUSION ............................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ........................................... 17

Anderson v. Creighton,

483 U.S. 635 (1987) ....................................... 4, 20

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ....................................... 15, 16

Bartnicki v. Vopper,

532 U.S. 514 (2001) ........................................... 19

Citizens United v. Federal Election Comm’n,

558 U.S. 310 (2010) ........................................... 13

Commonwealth v. Blanding,

20 Mass. 304 (1825) .......................................... 14

Florida Star v. B.J.F.,

491 U.S. 524 (1989) ........................................... 19

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) ..................................... 14, 15

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ..................................... 6, 7, 8

iii

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ......................................... 9

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) ........................................... 15

Illinois v. Krull,

480 U.S. 340 (1987) ............................................. 7

Imbler v. Pachtman,

424 U.S. 409 (1976) ............................................. 5

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ........................................... 18

Landmark Commc’ns, Inc. v. Virginia,

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

Little v. Barreme,

6 U.S. 170 (1804) ................................................. 7

Lovell v. City of Griffin, Ga.,

303 U.S. 444 (1938) ........................................... 20

Martin v. City of Struthers, Ohio,

319 U.S. 141 (1943) ........................................... 17

Minneapolis Star & Trib. Co. v. Minnesota

Comm’r of Revenue,

460 U.S. 575 (1983) ........................................... 19

NAACP v. Button,

371 U.S. 415 (1963) ........................................... 17

iv

Near v. State of Minnesota ex rel. Olson,

283 U.S. 697 (1931) ..................................... 14, 16

New York Times Co. v. United States,

403 U.S. 713 (1971) ............................... 15, 16, 19

Nieves v. Barlett,

587 U.S. 391 (2019) ........................................... 21

Oklahoma Publishing Co. v. Oklahoma

County District Court,

430 U.S. 308 (1977) ........................................... 20

Organization for a Better Austin v. Keefe,

402 U.S. 415 (1971) ........................................... 16

Pearson v. Callahan,

555 U.S. 223 (2009) ............................................. 4

Rosenberger v. Rector & Visitors of Univ. of

Va.,

515 U.S. 819 (1995) ........................................... 11

Siegert v. Gilley,

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

Smith v. Daily Mail Publishing Co.,

443 U.S. 97 (1979) ............................................. 19

United States v. Batchelder,

442 U.S. 114 (1979) ........................................... 10

Villarreal v. City of Laredo, Texas,

44 F.4th 363 (5th Cir. 2022) ....................... 2, 4, 8

v

Villarreal v. City of Laredo, Texas,

94 F.4th 374 (5th Cir. 2024)

................................................. 2, 9, 11, 12, 15, 18

Villarreal v. City of Laredo, Texas,

134 F.4th 273 (5th Cir. 2025)

................................................................... 3, 8, 20

Virginia Pharmacy Board v. Virginia

Citizens Consumer Council,

425 U.S. 748 (1976) ........................................... 18

Constitutions

U.S. Const. Amend. I

............ 1, 2, 3, 4, 7, 8, 9, 10, 11, 13, 16, 17, 21, 22

Statutes

42 U.S.C. § 1983

......................................... 1, 3, 5, 6, 19, 20, 21, 22

Tex. Gov’t Code § 552.001 ...................................... 12

Tex. Gov’t Code § 552.108 (c) ................................. 12

Tex. Penal Code Ch. 39 .......................................... 13

Tex. Penal Code § 39.06(b) ..................................... 10

Tex. Penal Code § 39.06(c) ..................................... 10

vi

Other Authorities

Peggy M. Baker, The Plymouth Colony

Patent: setting the stage, Pilgrim Society

& Pilgrim Hall Museum (2007),

available at:

https://pilgrimhall.org/pdf/The_Plymout

h_Colony_Patent.pdf ......................................... 18

Steven Gow Calabresi, James Lindgren,

Hannah M. Begley, Kathryn L. Dore &

Sarah E. Agudo, Individual Rights

Under State Constitutions In 2018: What

Rights Are Deeply Rooted In A ModernDay Consensus Of The States?, Notre

Dame Law Review, Vol. 94:1 p. 73 (2018) ........ 17

1 Thomas M. Cooley, A Treatise on The Law

of Torts or The Wrongs Which Arise

Independently of Contract 326 (John

Lewis ed., 3d ed. 1906) ........................................ 5

Aaron L. Neilson & Christopher J. Walker,

A Qualified Defense of Qualified

Immunity, 93 Notre Dame L. Rev. 1853,

n.57 (2018) ........................................................... 6

The New York Times Corporate Governance

available at:

https://www.nytco.com/investors/corpora

te-governance/ ................................................... 17

1

INTEREST OF AMICUS CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because protection of the

freedoms of expression and association, guaranteed by

the First Amendment, is essential for an open and

diverse society.

SUMMARY OF ARGUMENT

The use of qualified immunity to shield

government employees from liability for intentional

and slow-moving infringement of First Amendment

rights creates a moral hazard that is at odds with the

Constitution and The Civil Rights Act. The First

Amendment prohibits the government from making

laws that abridge speech and the press. Section 1983

creates a cause of action for violations of civil rights

under color of state law. But these protections are

weakened where state actors may infringe First

Amendment rights and then rely on prolix state law

to trigger qualified immunity, claiming they did not

know any better. The more obscure the state law, the

less likely it is that a prior case was decided on a

similar set of facts. The result is that clear and

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

and no person other than amicus or its counsel made any

monetary contributions to fund the preparation or submission of

this brief. AFPF timely notified all counsel of its intent to file.

2

generally applicable protections are supplanted by

idiosyncratic state law.

This is just such a case, involving a citizen

journalist who asked a government employee to

confirm independently sourced information and then

published it. Six months later, local officials arrested

her under a previously-unused anti-corruption

statute.2 But the First Amendment protects each step

in this journalist’s saga. No step presents even a

borderline question. Indeed, that sequence of events

is so squarely within the bounds of the First

Amendment that it is protected by two clauses:

Speech and Press.

One would be justified in thinking the legal

standard for silencing a journalist and arresting her

for reporting double-sourced facts would be high and

that she could vindicate the violation of her civil

rights. Not here. Instead, she was burdened with

navigating various state-law exceptions to First

Amendment protection just to keep her complaint

from being dismissed. She succeeded in her first visit

to the Fifth Circuit. But after en banc review, the

court accepted state-law limits on the press as the

basis for qualified immunity.

Granting Villarreal’s first petition for certiorari,

this Court vacated the en banc decision and remanded

for consideration in light of Gonzalez v. Trevino, 602

U.S. 653 (2024), which held a plaintiff who claims

2 Villarreal v. City of Laredo, Texas, 44 F.4th 363, 368 (5th Cir.

2022) (“Villarreal I”)., reh’g en banc granted, opinion vacated, 52

F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, 94

F.4th 374 (5th Cir. 2024) (“Villarreal II”).

3

retaliatory arrest for exercising First Amendment free

speech rights is not required to present evidence of

identifiable people who were not arrested under

similar circumstances to overcome the general rule

that the plaintiff must plead and prove the absence of

probable cause for the arrest. On remand, the Fifth

Circuit held that “whether or not Appellant Villarreal

stated a plausible claim for unconstitutional

retaliation based on her ‘speech’ . . . DefendantsAppellees properly claim qualified immunity from

liability,” thus bypassing Gonzalez entirely. Villarreal

v. City of Laredo, 134 F.4th 273, 275–76 (5th Cir.

2025) (“Villarreal III”) (“we are not called upon to

consider the constitutional implications of Villarreal’s

claim for Gonzalez’s applying the Nieves exception to

her.”). This case now returns to this Court on the same

issue presented on its first trip: whether qualified

immunity shields government actors from slowmoving and obvious infringement of First Amendment

rights.

Here, unmistakable speech and press rights were

forced to give way to obscure and overbroad

application of state laws addressing fraud and

corruption. Doing so narrowed First Amendment

protections for journalists and frustrated the purpose

of § 1983.

To the extent qualified immunity serves any

purpose, this is not it. The Court should grant

certiorari to quash application of precedent that

creates moral hazards undermining First Amendment

protections wherever a criminal law may be

unearthed that could criminalize speech.

4

ARGUMENT

I.

QUALIFIED IMMUNITY SHOULD NOT SHIELD

CONSTITUTIONAL INFRINGEMENT IN SLOWMOVING FIRST AMENDMENT CASES.

In cases of alleged infringement of First

Amendment rights, particularly where, as here, a

slow-moving chain of events unfurls over a multimonth period, qualified immunity should be applied

rarely, if at all. This is because, as the panel opinion

correctly stated, “[t]he crucial question . . . is whether

‘a reasonable official would understand that what he

is doing violates [a constitutional] right.’” Villarreal I,

44 F.4th at 369 (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). In cases implicating bedrock

First Amendment activity, a legal doctrine that

excuses—even incentivizes—ignorance is a poor fit.

Qualified immunity serves two purposes: to ensure

fair notice for government employees before personal

liability can be imposed—consistent with the

constitutional due process requirement of fair notice;3

and to promote official action recognized under the

common law as necessary to society by protecting

government employees from lawsuits that may

discourage them from doing their jobs or accepting

employment that would create legal exposure. 4 The

3 “Qualified immunity operates to ensure that before they are

subjected to suit, officers are on notice their conduct is unlawful”

Pearson v. Callahan, 555 U.S. 223, 244 (2009) (cleaned up).

4 Siegert v. Gilley, 500 U.S. 226, 232 (1991) (“One of the purposes

of immunity, absolute or qualified, is to spare a defendant not

only unwarranted liability, but unwarranted demands

customarily imposed upon those defending a long drawn out

lawsuit.”).

5

societal justification for promoting action

explained by Cooley’s Treatise on Torts:

was

It is for the best interests of society that

those who offend against the laws shall

be promptly punished, and that any

citizen who has good reason to believe

that the law has been violated shall have

the right to cause the arrest of the

offender. For the purpose of protecting

him in so doing, it is the established rule,

that if he have reasonable grounds for

his belief, and act thereon in good faith

in causing the arrest, he shall not be

subjected to damages merely because the

accused is not convicted. This rule is

founded upon grounds of public policy, in

order to encourage the exposure of

crime[.]

1 Thomas M. Cooley, A Treatise on The Law of Torts

or The Wrongs Which Arise Independently of Contract

326 (John Lewis ed., 3d ed. 1906) (citation omitted).

In the area of policing, the Court long ago

“concluded that police officers could assert ‘the

defense of good faith and probable cause’ against the

claim for an unconstitutional arrest because that

defense was available against the analogous torts of

‘false arrest and imprisonment’ at common law.” Id.

at 1871 (Thomas, J. concurring in part and concurring

in the judgment) (citing Pierson, 386 U.S. at 557).

Thus, the Court has recognized police “under § 1983

[have] a ‘good faith and probable cause’ defense

coextensive with their defense to false arrest actions

at common law.” Imbler v. Pachtman, 424 U.S. 409,

418–19 (1976). While the Court has largely

6

abandoned this approach in favor of the Harlow

“objective,” “clearly established” test, see Harlow v.

Fitzgerald, 457 U.S. 800 (1982); Ziglar, 137 S. Ct. at

1866–67 (applying the objective test in § 1983 cases),

it is instructive to understand the goals qualified

immunity has traditionally served.

With the near elimination of the good-faith

defense, fair notice has become largely dispositive.

Regarding due process and clarity in settled law,

there is a distinction between unclear or erroneous

laws for which a government actor could not

reasonably be deemed to have fair notice and acts that

are so clearly unconstitutional or otherwise unlawful

that a government actor should be expected to know

better. On the one hand, “imagine an officer engages

in conduct that has been explicitly blessed by the

Supreme Court but nonetheless is sued for it, and in

the course of that litigation, the Supreme Court

overrules its prior decision. Presumably imposing

liability on that officer would offend principles of fair

notice.” Aaron L. Neilson & Christopher J. Walker, A

Qualified Defense of Qualified Immunity, 93 Notre

Dame L. Rev. 1853, n.57 (2018) (cleaned up). In that

case, it would be unreasonable to hold the officer to a

higher standard of knowledge than the Court itself.

Notably, this standard is more lenient on government

officials than the standard applied to private litigants

who are granted no “good faith” exception from

liability when the Court recognizes a novel application

of a statute. E.g., Bostock v. Clayton Cnty., Georgia,

590 U.S. 644, 662 (2020).

On the other hand, when the law is clear, the

government actor is bound by it and may be liable

even in the face of contrary commands from a

7

superior. For example, in a case from the early days of

the Republic, the Court held a ship captain

responsible for the unlawful seizure of another ship

even though he relied on the President’s

interpretation of statutory authority, because the

President’s order could not change the underlying

law. Little v. Barreme, 6 U.S. 170, 170 (1804). The

captain of the ship was responsible for complying with

the law regardless of the President’s command. See id.

at 179 (holding “instructions cannot change the

nature of the transaction, or legalize an act which

without those instructions would have been a plain

trespass”). This approach, refusing to shield reliance

on a patently invalid law has stood the test of time.

See, e.g., Illinois v. Krull, 480 U.S. 340, 355 (1987) (“A

statute cannot support objectively reasonable reliance

if, in passing the statute, the legislature wholly

abandoned its responsibility to enact constitutional

laws. Nor can a law enforcement officer be said to have

acted in good-faith reliance upon a statute if its

provisions are such that a reasonable officer should

have known that the statute was unconstitutional.”).

Fair notice that speech and the press are protected

is readily satisfied because claims of First

Amendment infringement are among the most

frequently discussed and hotly asserted constitutional

rights. It is thus reasonable to expect a public official

with even the most rudimentary understanding of our

constitutional system to be aware that government

attempts to punish speech and the press should be

met with a jaundiced eye and—at a minimum—pause

and seek guidance about whether a course of action is

lawful. As the Court held in Harlow, “[w]here an

official could be expected to know that certain conduct

would violate statutory or constitutional rights, he

8

should be made to hesitate.” 457 U.S. at 815–19. The

alternative would be to promote ignorance of the

Constitution as a shield against liability.

Moreover, in cases like this one, in which six

months elapsed between a journalist’s questioning of

the police officer and law enforcement’s finding a

reason to arrest her, fair notice that they were

heading down an unconstitutional path would be easy

to satisfy. This holds particularly true where, as here,

the action taken was extreme: “It should be obvious to

any reasonable police officer that locking up a

journalist for asking a question violates the First

Amendment,” Villarreal I, 44 F.4th at 373. Six months

would be more than enough time to eliminate any

lingering doubt that arresting her raises

constitutional concerns. But even in more subtle

cases, the slow-moving nature of many First

Amendment conflicts raises doubt whether qualified

immunity should ever apply. Villarreal III, 134 F.4th

at 277 (Oldham, J. concurring) (“When an officer has

the time to make such plans, to consult counsel, and

to investigate all the facts, it is unclear whether and

to what extent qualified immunity should apply.”).

Even if it does apply, it should be the rarity not the

rule.

This issue has relevance well beyond policing and

is particularly acute in settings where an

unconstitutional policy can be changed to moot a

plaintiff’s case either through narrow modifications

that elude the plaintiff’s specific fact pattern or

through flip-flopping policies to wriggle past plaintiffs

with standing based on temporary status. This type of

gamesmanship is familiar, for example, on university

campuses where college administrators set policies

9

that infringe speech rights of students and faculty

despite involving a slow-moving policy-making

process that is amenable to legal consultation. Justice

Thomas acknowledged the issue in the denial of

certiorari in Hoggard v. Rhodes, 141 S. Ct. 2421, 2422

(2021) (Thomas, J., statement respecting denial of

cert.) (“But why should university officers, who have

time to make calculated choices about enacting or

enforcing unconstitutional policies, receive the same

protection as a police officer who makes a split-second

decision to use force in a dangerous setting?”).

Accordingly, if this Court retains the qualified

immunity doctrine in the First Amendment context,

then it should severely limit its use and such

application should be informed by the amount of time

available to the state actor to consider whether the

proposed course of action is constitutional.

II.

THE FIRST AMENDMENT IS THE FIRST MOVER

BEFORE EXCEPTIONS ARE APPLIED.

The First Amendment interests in this case are

straightforward and should have been vindicated

easily. Prior restraints, like those applied here, are

inherently suspect and any content-based exceptions

to broad First Amendment protection must satisfy

strict scrutiny.

Although the U.S. Constitution is superior to state

law, here state law prevailed. The rationalization for

elevating state law over speech and press rights was

the novel idea that “perks available to citizen

journalists” arising from publication are a “benefit”

that can displace constitutional exercise. Villarreal II,

94 F.4th at 388. But the blessings of liberty cannot be

stripped away by labeling them “benefits”. Nor can the

established expectation that exercising constitutional

10

rights could be a profitable activity be deemed notice

that criminal liability could result unless the exercise

has been pre-cleared by the state.

This case takes the opposite approach, reading a

law that sounds in fraud and self-dealing to prohibit

constitutionally protected activity unless the accused

proves she received no “benefit”5,6 from the exercise.

The Texas law, which prohibits obtaining and using

protected information for personal gain, could have

constitutional applications that do not implicate

speech. For example, prohibiting backdoor access to

public employees’ banking information to protect

against identity theft or blackmail would likely pass

constitutional muster. But here, broadly reading the

statute to reach millrun speech and press activity gets

the Constitution-to-state law relationship backward.

First Amendment protection must be the default

unless the government can satisfy (usually) strict

scrutiny. Moreover, even with lawful restraints, due

process requires criminal law to provide notice that a

person of ordinary intelligence could understand. 7

5 Texas Penal Code § 39.06(c) (“(c)

A person commits an offense

if, with intent to obtain a benefit or with intent to harm or

defraud another, he solicits or receives 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.”).

Tex. Penal Code § 39.06(b) (“A public servant commits an

offense if with intent to obtain a benefit or with intent to harm

or defraud another, he discloses or uses information for a

nongovernmental purpose that: (1) he has access to by means of

his office or employment; and (2) has not been made public.”).

6

7 “A criminal statute is therefore invalid if it fails to give a person

of ordinary intelligence fair notice that his contemplated conduct

is forbidden.” United States v. Batchelder, 442 U.S. 114, 123

(1979) (cleaned up).

11

Neither requirement is satisfied when law

enforcement officers invoke prolix interpretations of

law—or invent self-serving interpretations—that

contravene black letter First Amendment law in ways

that could not be anticipated by a person of ordinary

intelligence—and would chill speech and press rights.

Moreover, applying qualified immunity to

encourage narrow application of the First

Amendment and broad imposition of criminal liability

on speech and press activity creates a moral hazard in

which complexity and ambiguity create greater

leeway for law enforcement to violate civil rights.

A.

Private Individuals Do Not Bear the

Burden of Proving They Are Not

Criminals for Speaking.

Applying a criminal statute to First Amendment

activity and claiming speakers can avoid criminal

liability by simply complying, gets the law backwards.

The court below asserted that Ms. Villarreal “could

have followed Texas law.” Villarreal II, 94 F.4th at

381. This contention misunderstands the relationship

between a speaker and the state. It may be true that

speakers could avoid criminal liability for statutory

speech violations if they simply stopped speaking; but

that is not how the First Amendment works. Instead,

the burden falls on the government to rebut the

presumption that discrimination against speech due

to its message is unconstitutional. See Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–

29 (1995).

Moreover, the notion that Ms. Villarreal “could

have” followed Texas law requires a leap of faith that

the minefield of presumptions at play here could be

navigated without special knowledge. To comply, she

12

would, for example, have had to recognize a legally

significant difference between an “LPD Officer” and

an “LPD information officer” before asking for

confirmation of basic facts8—assuming she was even

aware of the existence of two distinct titles. She would

also have had to recognize that: 1) age, name, and

employment information of a deceased person are

protected despite a statutory presumption in favor of

broad public disclosure;9 2) independently-sourced

information

could

become

secret

“official

information”10 if law enforcement also knows it;

3) there is such a thing as “official news media;”11

4) public interest in her reporting could be an illicit

8 Villarreal II, 94 F.4th at 382.

See generally Tex. Gov’t Code §552.001(a) (“Under the

fundamental philosophy of the American constitutional form of

representative government that adheres to the principle that

government is the servant and not the master of the people, it is

the policy of this state 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. . . . The provisions of this

chapter shall be liberally construed to implement this policy.).

See also Tex. Gov’t Code § 552.108 (c) (“This section does not

except from the requirements of Section 552.021 information

that is basic information about an arrested person, an arrest, or

a crime. A governmental body shall promptly release basic

information responsive to a request made under this chapter

unless the governmental body seeks to withhold the information

as provided by another provision of this chapter, and regardless

of whether the governmental body requests an attorney general

decision under Subchapter G regarding other information

subject to the request.”).

9

10 94 F.4th at 382.

11 94 F.4th at 383.

13

“benefit;”12 5) a statutory definition could limit the

blessings lawfully flowing from constitutional

rights;13 and 6) information about real world events

could be redefined as “information about the affairs of

government” at the discretion of government.14

Even assuming, against the backdrop of nearubiquitous First Amendment protection of speech and

the press, a person must self-censor to resolve a

conflict between the Constitution and state law, the

idea that anyone could be expected to understand and

comply with eccentric applications of fraud law to

attempts to confirm basic information prior to

publication is fanciful. “The First Amendment does

not permit laws that force speakers to . . . seek

declaratory rulings before discussing the most salient

political issues of our day. Prolix laws chill speech for

the same reason that vague laws chill speech: People

of common intelligence must necessarily guess at the

law’s meaning and differ as to its application.”

Citizens United v. Federal Election Comm’n, 558 U.S.

310, 324 (2010) (cleaned up). Application of criminal

law from a chapter titled “Abuse of Office”15 against a

private speaker with no “office” and without any

associated non-speech-based offense is so far outside

the norm of constitutional expectations it could not

reasonably be anticipated.

The baseline understanding for journalists and for

law enforcement must be that the First Amendment

12 Id. at 384.

13 Id. at 386.

14 Id. at 386.

15 Texas Penal Code Ch. 39 Abuse of Office

14

protects journalistic endeavors such as investigation

and publication.

B.

Prior Restraints Are Presumed To

Be Unconstitutional.

The prohibition against prior restraints on

publishing is neither new nor obscure. It “has been

generally, if not universally, considered that it is the

chief purpose of the guaranty [of liberty of the press]

to prevent previous restraints upon publication.” Near

v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713

(1931). The elimination of such restraints was one of

the rationales motivating broad press freedom at the

founding. As James Madison explained, “This security

of the freedom of the press requires that it should be

exempt not only from previous restraint by the

Executive, as in Great Britain, but from legislative

restraint also.” Id. at 14 (quoting Report on the

Virginia Resolutions, Madison’s Works, vol. IV, p.

543.). See also Commonwealth v. Blanding, 20 Mass.

304, 313–14 (1825) (“it is well understood, and

received as a commentary on this provision for the

liberty of the press, that it was intended to prevent all

such previous restraints upon publications as had

been practised [sic] by other governments”).

“As early as 1644, John Milton, in an ‘Appeal for

the Liberty of Unlicensed Printing,’ assailed an act of

Parliament which had just been passed providing for

censorship of the press previous to publication. He

vigorously defended the right of every man to make

public his honest views ‘without previous censure’;

and declared the impossibility of finding any man

base enough to accept the office of censor and at the

same time good enough to be allowed to perform its

duties.” Grosjean v. Am. Press Co., 297 U.S. 233, 245–

15

46 (1936). This interpretation is as valid now as it was

then. Houston Cmty. Coll. Sys. v. Wilson, 595 U.S.

468, 474 (2022).

As applied here, the Texas law is an

unconstitutional prior restraint by: 1) preventing a

reporter from confirming her information—thus

chilling the publication of independently discovered

information due to uncertainty; or 2) preventing a

reporter from publishing information that has been

corroborated by the government by putting the label

“official information” on it even if already known to

the reporter. Nevertheless, on appeal, the court found

no established law holding that “it is unconstitutional

to arrest a person, even a journalist, upon probable

cause for violating a statute that prohibits solicitation

and receipt of nonpublic information from the

government for personal benefit.” Villarreal II, 94

F.4th at 395.

Of course, as the opinion explains, it is not simply

the “solicitation and receipt” of the information that

makes the law applicable to Ms. Villarreal, but rather

the so-called “personal benefit” of publishing it—

another unconstitutional precept that has been

repudiated by this Court. New York Times Co. v.

United States, 403 U.S. 713 (1971) (per curium)

(“Pentagon Papers”). In the Pentagon Papers, the

government sought to prevent the New York Times

and the Washington Post from publishing the

contents of a classified study entitled History of U.S.

Decision-Making Process on Viet Nam Policy. 403 U.S.

at 713–14. The Court’s opinion was succinct. “‘Any

system of prior restraints of expression comes to this

Court bearing a heavy presumption against its

constitutional validity.’” 403 U.S. at 714 (citing

16

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70

(1963); see Near, 283 U.S. at 713. The “Government

‘thus carries a heavy burden of showing justification

for the imposition of such a restraint.’” 403 U.S. at 714

(citing Organization for a Better Austin v. Keefe, 402

U.S. 415, 419 (1971)). Accordingly, the Court held the

attempt to prevent publication unconstitutional. Id. at

713.

Justice Black, in his concurrence, went a step

further, admonishing the administration:

Now, for the first time in the 182 years

since the founding of the Republic, the

federal courts are asked to hold that the

First Amendment does not mean what it

says, but rather means that the

Government can halt the publication of

current news of vital importance to the

people of this country.

Id. at 715.

The simplicity of the analysis, coupled with

decades of precedent demonstrating the presumption

against prior restraints, and the vehemence of the

concurrences make clear that taking action against a

publisher—even in cases of confidential government

information—is not a close call. It is, in fact, well

established.

17

C.

Publishing Is a Right, Not a Benefit

To Be Bestowed by the State.

All fifty states guarantee freedom of the press,

writing, and/or publishing.16 Most include a caveat

that the individual may be responsible for abuse of

that right or even limitations for libel or obscenity. 17

But none weaken the right to publish if the publisher

is successful in developing an audience.18

These rights do not turn on whether the publisher

benefits from publication. It is commonplace, for

example, for publishing activity to be for-profit. 19 Forprofit endeavors enjoy the same constitutional

protection as publication for free. Nor can a change of

labels be used to evade the First Amendment.

Attempts to do so are sadly not uncommon, but this

Court has steadfastly resisted the attempt. See, e.g.,

NAACP v. Button, 371 U.S. 415, 429 (1963) (“a State

cannot foreclose the exercise of constitutional rights

by mere labels.”). Indeed, the Pilgrims themselves

were both a for-profit enterprise and aiming to

16 Steven Gow Calabresi, James Lindgren, Hannah M. Begley,

Kathryn L. Dore & Sarah E. Agudo, Individual Rights Under

State Constitutions In 2018: What Rights Are Deeply Rooted In A

Modern-Day Consensus Of The States?, Notre Dame Law Review,

Vol. 94:1 p. 73 (2018)

17 Id. at 74–75.

Indeed, the greater the audience interest, the greater the

magnitude of listeners’ rights. Martin v. City of Struthers, Ohio,

319 U.S. 141, 143 (1943) (The freedoms of speech and press

“embraces the right to distribute literature, . . . and necessarily

protects the right to receive it.”).

18

19 The New York Times, for example, is a for profit entity. See,

New York Times Corporate Governance information, available

at: https://www.nytco.com/investors/corporate-governance/

18

exercise what would later become First Amendment

freedoms.20 And recently, the Court rebuffed

Colorado’s attempt to use public accommodations law

to compel speech. 303 Creative LLC v. Elenis, 600 U.S.

570 (2023). Thus, the protection of expressive works

provided by the First Amendment does not turn on

whether the speaker or publisher receives a

commercial benefit.

Rather, for sold speech, like “books, newspapers,

and magazines,” being “published and sold for profit

does not prevent them from being a form of expression

whose liberty is safeguarded by the First

Amendment.” Joseph Burstyn, Inc. v. Wilson, 343 U.S.

495, 501 (1952). See also Virginia Pharmacy Board v.

Virginia Citizens Consumer Council, 425 U.S. 748,

761 (1976) (collecting cases illustrating that “speech

does not lose its First Amendment protection because

money is spent to project it”). Time and again, the

Court has focused on the speech element and turned

aside attempts to evade the First Amendment. Thus,

whether “Villarreal sought to capitalize on others’

tragedies to propel her reputation and career,”

Villarreal II, 94 F.4th at 381, has no legal significance.

Indeed, traditional journalists do this every day at forprofit news outlets.

Moreover, like the other provisions of the First

Amendment, it should come as no surprise and make

no legal difference that Villarreal may have enjoyed a

psychic benefit from exercising her First Amendment

rights. Like exercising any right of conscience, the

20 See generally Peggy M. Baker, The Plymouth Colony Patent:

setting the stage, Pilgrim Society & Pilgrim Hall Museum (2007),

available

at:

https://pilgrimhall.org/pdf/The_Plymouth_Colony_Patent.pdf.

19

rights of speech and the press may be assumed to

generate satisfaction, vindication, or joy—among

other psychic benefits.

Finally, expansive receipt of information by the

public is wholly consistent with the purpose of the

Press Clause—to inform the people of information

necessary to self-government. “The press was to serve

the governed, not the governors. The Government’s

power to censor the press was abolished so that the

press would remain forever free to censure the

Government.” 403 U.S. at 717 (Black, J. concurring).

It thus has no legal consequence that a publisher’s

audience has grown as a result of her reporting; and

Freedom of the Press cannot be abridged on the basis

that only unsuccessful reporters are protected.

D.

Section 1983 Does Not Provide a

Bypass

Option

for

Violating

Constitutional Rights.

By its text, Section 1983 provides no escape valves.

42 U.S. Code § 1983. A plain reading would allow no

bypass for qualified immunity or for charging a

speaker with a crime to justify arrest—especially

where, as here, the peculiar application of the

criminal statute would itself be unconstitutional. But

at a minimum the moral hazard of allowing long lead

times to develop a theory of probable cause or to grant

qualified immunity in the face of the vast array of

cases protecting the press,21 should be avoided.

See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 517 (2001)

(publication of communication illegally intercepted by third

party); Florida Star v. B.J.F., 491 U.S. 524, 526 (1989)

(publishing, or broadcasting the name of the victim of a sexual

21

20

Moreover, as Judge Oldham explained, there is a

difference between rights and remedies, and thus

whether a plaintiff may satisfy the elements of § 1983

does not determine whether she has alleged a clear

constitutional violation for purposes of qualified

immunity. Villarreal III, 134 F.4th at 280 (Oldham, J.

concurring). “The point of qualified immunity is to

shield officials from liability unless ‘[t]he contours of

the right’ are “sufficiently clear” such that ‘a

reasonable official would understand that what he is

doing violates that right;’” by contrast, “the noprobable-cause rule is an element of the [Section 1983]

cause of action, rather than part of the underlying

constitutional right”. Villarreal III, 134 F.4th at 280

(Oldham, J. concurring) (citing Anderson, 483 U.S. at

640). It is thus “irrelevant [to the qualified immunity

inquiry] whether an officer should have known about

the existence and nature of a cause of action to remedy

that unlawful conduct.” Id. In other words, whether a

remedy may be had under § 1983 is different from

whether rights were violated. The illogic of conflating

offense); Minneapolis Star & Trib. Co. v. Minnesota Comm’r of

Revenue, 460 U.S. 575, 592 (1983) (imposing tax that targets the

press); Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 (1979)

(criminally forbidding newspapers to publish, without written

juvenile court approval, the name of any youth charged);

Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978)

(imposing criminal punishment of news media, for publishing

truthful information regarding confidential commission

proceedings); Oklahoma Publishing Co. v. Oklahoma County

District Court, 430 U.S. 308 (1977) (enjoining the media from

publishing the name or photograph of an 11-year-old boy

involved in juvenile proceeding that reporters had attended);

Lovell v. City of Griffin, Ga., 303 U.S. 444, 450 (1938)

(distributing ‘circulars, handbooks, advertising, or literature of

any kind.’).

21

these concepts is demonstrated here where the rights

of Freedom of Speech and of the Press are relevant to

the question of qualified immunity, but the

availability of a § 1983 remedy could turn on

application of a criminal law.

Treating

these

discrete

inquiries

as

interchangeable creates two moral hazards. First, in

cases involving slow-moving violations of First

Amendment rights, if finding a criminal basis for

arresting the speaker would create a bridge to

immunity based on probable cause, the very lapse of

time would incentivize post-hoc research into crimes

that could plausibly justify arrest. Second, if liability

under § 1983 may be bypassed by arresting the

speaker for a crime that depends on the speech, that

link creates an incentive to criminalize the speech

itself and thus create probable cause. But, the case on

which the Fifth Circuit relied, Reichle v. Howards,

involved arrest for an alleged crime arising from acts

separate from the protected speech. 566 U.S. 658

(2012). In Reichle, the plaintiff was arrested for

harassment based on allegations that he, 1) touched

the Vice President, and then, 2) lied about it to the

Secret Service. 566 U.S. 658, 662 (2012). These were

stand-alone allegations, separate from the speech for

which plaintiff claimed he was subject to retaliation.

Id. at 660 (officer overhearing plaintiff on the

telephone saying, “I’m going to ask [the Vice

President] how many kids he’s killed today.”), i.e., the

protected speech was not necessary to satisfy the

elements of the alleged crime. See also Nieves v.

Barlett, 587 U.S. 391, 396 (2019) (charge of disorderly

conduct and resisting arrest arising from interfering

with an investigation and initiating a physical

confrontation with an officer). That is very different

22

from using protected speech and press activity as the

elements of the alleged crime.

Take for example a protestor who calls a police

officer “fascist” and then hits the officer’s car with a

bat. The protestor may allege retaliation if arrested

for hitting the car with the bat—and may be correct in

asserting he would not have been arrested but for the

initial insult. But, regardless of retaliatory motive,

hitting the car gives rise to a charge that is distinct

from the speech. Compare that to a protestor calling a

police officer a fascist (no bat involved) and then being

arrested several months later for a crime that

criminalizes alleging a public employee is associated

with a political movement. The elements of that crime

may be satisfied by yelling “fascist,” thus creating

probable cause for arresting the protester. But in that

case the speech and the crime would be the same—

and the underlying “crime” would be based wholly on

protected speech.

A multi-month time period in which to research

whether any crime may be applied to the offensive

speech creates a moral hazard while also

demonstrating the distinction Judge Oldham

identified. It is well established that saying “fascist”

would be protected by the First Amendment and thus

qualified immunity should not apply to an arrest in

retaliation for saying it. But if the remedy provided by

§ 1983 could be nullified by arresting the speaker for

the “crime” of saying the word, then the speech

protections of the First Amendment come to naught.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

23

Respectfully submitted,

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd. Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

August 6, 2025