Opposition 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.

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

BRENT WEBSTER

First Assistant Attorney

General

WILLIAM R. PETERSON

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

William.Peterson@oag.texas.gov

(512) 936-1700

QU E S TIO N P RE SE N TE D

The core of Priscilla Villarreal’s petition is her repeated assertion that she had an “undoubted” First

Amendment right to solicit nonpublic information from a

government official—and that Respondent Officials

should have known it. Yet for nearly half a century, this

Court has held that States may, consistent with the First

Amendment, limit access to information held by the government and apply those limits to members of the media.

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). Unless section 39.06(c)

is “so grossly and flagrantly unconstitutional that any

person of reasonable prudence would be bound to see its

flaws,” police are charged with enforcing it unless and

until it is declared unconstitutional. Michigan v. DeFillippo, 443 U.S. 31, 38 (1979).

Before this Court, Villarreal does not contend that

section 39.06(c) is flagrantly unconstitutional, nor does

she identify any clearly established precedent holding a

law like section 39.06(c) unconstitutional. Instead, she argues that Respondent Officials had an obligation to realize what no court has yet recognized—that the First

Amendment supplies an as-applied defense to Villarreal.

The question presented is:

Whether qualified immunity protects an officer’s reliance on a properly issued arrest warrant for violation

of a facially constitutional statute.

(I)

TA BLE O F C O NTE N TS

Page

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

Table of Contents ............................................................. II

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

I. The Fifth Circuit’s Decision Does Not

Conflict with Precedent from This Court. ......... 11

A. Texas’s law does not contravene this

Court’s First Amendment precedent. .......... 12

1. Section 39.06(c) does not criminalize

merely asking questions. ......................... 13

2. States may enact and enforce laws

that keep information confidential. ........ 15

3. Section 39.06(c) is not flagrantly

unconstitutional, facially or as-applied... 18

B. Villarreal relies on inapplicable precedent. . 20

1. Section 39.06(c) does not infringe

the right to publish lawfully acquired

information. .............................................. 20

2. Villarreal has not shown a violation

of the Court’s warrant precedent. .......... 22

3. Hope does not save Villarreal’s claim..... 25

C. Villarreal fails to identify a conflict with

the Court’s retaliation precedent. ................ 26

II. The Fifth Circuit’s Ruling Does Not Conflict

with Decisions from Other Circuits. .................. 28

(II)

III

III. No Additional Reasons Exist to Grant

Certiorari. ............................................................ 31

Conclusion ....................................................................... 34

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) ....................................................... 33

Amgen, Inc. v. Sanofi,

598 U.S. 594 (2023) ....................................................... 31

Anderson v. Creighton,

483 U.S. 635 (1987) ...................................................... 26

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ...................... 1, 11, 22, 24-26, 31, 33

Associated Press v. NLRB,

301 U.S. 103 (1937) ....................................................... 16

Bartnicki v. Vopper,

532 U.S. 514 (2001) ....................................................... 21

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ....................................................... 25

Berge v. Sch. Comm.,

107 F.4th 33 (1st Cir. 2024) ........................................ 19

Black v. Cutter Laboratories,

351 U.S. 292 (1956) ....................................................... 31

Book People, Inc. v. Wong,

91 F.4th 318 (5th Cir. 2024) ........................................... 3

Borgelt v. Austin Firefighters Ass’n,

IAFF Loc. 975,

692 S.W.3d 288 (Tex. 2024) .......................................... 14

Branzburg v. Hayes,

408 U.S. 665 (1972) ..........................I, 1, 9, 12, 16, 21, 26

Bridges v. California,

314 U.S. 252 (1941) ....................................................... 22

V

Page(s)

Cases (ctd.):

Butz v. Economou,

438 U.S. 478 (1978) ....................................................... 17

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

595 U.S. 267 (2022) ......................................................... 7

City of Houston v. Hill,

482 U.S. 451 (1987) ....................................................... 22

Cohen v. California,

403 U.S. 15 (1971) ................................................... 28, 29

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ........................................... 17, 18, 22

District of Columbia v. Wesby,

583 U.S. 48 (2018) ................................................... 11, 20

Escambia County v. McMillan,

466 U.S. 48 (1984) ......................................................... 31

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

491 U.S. 524 (1989) ....................................................... 21

Freedom From Religion Found. v. Abbott,

955 F.3d 417 (5th Cir. 2020) ........................................ 33

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ....................................................... 15

Gonzalez v. Trevino,

602 U.S. 653 (2024) ........................................... 10, 27, 33

Heien v. North Carolina,

574 U.S. 54 (2014) ......................................................... 34

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................... 12, 25, 26

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) .................. I, 1, 9, 12, 13, 15, 16, 26, 32

VI

Page(s)

Cases (ctd.):

Hustler Magazine v. Falwell,

485 U.S. 46 (1988) ................................................... 22, 30

Ex parte JBK,

931 S.W.2d 581

(Tex. App.—El Paso 1996) ...................................... 5, 15

Jordan v. Jenkins,

73 F.4th 1162 (10th Cir. 2023) ............................... 30, 33

Kleindienst v. Mandel,

408 U.S. 753 (1972) ...................................................... 31

Landmark Commc’ns, Inc. v. Virginia,

435 U.S. 829 (1978) ....................................................... 22

LAPD v. United Reporting Publ’g Corp.,

528 U.S. 32 (1999) ......................................................... 16

Lawrence v. Reed,

406 F.3d 1224 (10th Cir. 2005) .................................... 30

Leonard v. Robinson,

477 F.3d 347 (6th Cir. 2007) .................................. 28, 29

Malley v. Briggs,

475 U.S. 335 (1986) ....................................................... 24

Marcus v. Search Warrants of Prop. at 104 E.

Tenth St.,

367 U.S. 717 (1961) ................................................. 23, 24

Messerschmidt v. Millender,

565 U.S. 535 (2012) ....................................................... 32

Michigan v. DeFillippo,

443 U.S. 31 (1979) .......................... I, 1, 11, 17, 18, 19, 33

Mink v. Knox,

613 F.3d 995 (10th Cir. 2010) ...................................... 30

VII

Page(s)

Cases (ctd.):

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) ................................................. 13, 18

Mullenix v. Luna,

577 U.S. 7 (2015) ....................... 11, 19, 22, 24, 25, 26, 33

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

403 U.S. 713 (1971) ....................................................... 16

Nieves v. Bartlett,

587 U.S. 391 (2019) ............................................. 9, 10, 27

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

557 U.S. 193 (2009) ....................................................... 31

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) .................................................. 21-22

Page v. State,

492 S.W.2d 573 (Tex. Crim. App. 1972)...................... 15

Paxton v. City of Dallas,

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

Paxton v. Longoria,

646 S.W.3d 532 (Tex. 2022) ..................................... 14,15

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................. 24, 31

People v. Boomer,

655 N.W.2d 255 (Mich. Ct. App. 2002) ....................... 28

Pierson v. Ray,

386 U.S. 547 (1967) ....................................................... 17

Reichle v. Howards,

566 U.S. 658 (2012) ................................................ 10, 27

VIII

Page(s)

Cases (ctd.):

Roaden v. Kentucky,

413 U.S. 496 (1973) ................................................. 23, 24

Sause v. Bauer,

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

Smith v. Daily Mail Publ’g Co.,

443 U.S. 97 (1979) ................................................... 20, 21

Snider v. City of Cape Girardeau,

752 F.3d 1149 (8th Cir. 2014) ................................ 29, 30

Stanford v. Texas,

379 U.S. 476 (1965) .................................................. 24-25

State v. Ford,

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

State v. Kahookele,

640 S.W.3d 221 (Tex. Crim. App. 2021) ..................... 14

State v. Newton,

179 S.W.3d 104 (Tex. App.—San Antonio 2005) ...... 4-5

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

811 S.W.2d 687 (Tex. App.—Austin 1991) ................. 14

Street v. New York,

394 U.S. 576 (1969) ....................................................... 29

Taylor v. Riojas,

592 U.S. 7 (2020) ........................................................... 25

Texas v. Johnson,

491 U.S. 397 (1989) ....................................................... 29

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) ....................................................... 29

IX

Page(s)

Cases (ctd.):

United States v. Hansen,

599 U.S. 762 (2023) ....................................... 1, 13, 15, 19

United States v. Lanier,

520 U.S. 259 (1997) ....................................................... 26

Va. State Bd. of Pharmacy v. Va. Citizens

Consumer Council, Inc.,

425 U.S. 748 (1976) ...................................................... 31

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) ....................................... 7, 8

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015) ................................................... 1, 19

Zemel v. Rusk,

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

Constitutional Provisions, Statutes, and Rules:

U.S. Const.:

amend. I..... I, 1, 2, 4-6, 9-13, 15-20, 22-24, 26, 27, 31-33

amend. IV ..................................................... 25, 28, 32-34

amend. XIV ............................................................. 22, 23

28 U.S.C. § 2403 .................................................................... 6

42 U.S.C. § 1983 ...................................................... 12, 17, 33

Tex. Gov’t Code:

§ 552.001 .......................................................................... 3

§ 552.002 .......................................................................... 3

§ 552.003 .......................................................................... 3

§ 552.021 .......................................................................... 3

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

X

Page(s)

Constitutional Provisions, Statutes, and

Rules (ctd.):

Tex. Gov’t Code:

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

§ 552.221 .......................................................................... 3

§ 552.301 .......................................................................... 4

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

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

§ 2063.301 ........................................................................ 3

Tex. Health & Safety Code § 245.011 ................................. 3

Tex. Penal Code:

§ 1.07 ................................................................................ 4

§ 7.02 ......................................................................... 13-14

§ 39.06 ........................ I, 1-2, 4-9, 11-14, 17, 19-22, 27-32

Tex. Transp. Code § 550.065 ............................................... 8

W. Va. Code § 49–7–3 ......................................................... 21

Fed. R. Civ. P. 12.................................................................. 6

Sup. Ct. R. 10 ................................................................ 24, 28

Other Authorities:

Bryan A. Garner, A DICTIONARY OF

MODERN LEGAL USAGE (2d ed. 1995) ........................ 13

Model Penal Code § 5.02 (2001) ........................................ 14

Potter Stewart, Or of the Press,

26 HASTINGS L.J. 631 (1975) .................................. 15-16

Solicitation, BLACK’S LAW DICTIONARY

(11th ed. 2019) ......................................................... 14, 15

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) ............... 16, 20, 26

XI

Page(s)

Other Authorities (ctd.):

Tex. Att’y Gen. OR2022-36798,

2022 WL 17552725 (2022) .............................................. 8

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

First Amendment,

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

INT RO D U C TIO N

Using a framing the Fifth Circuit called “clever but

misleading,” Pet.App.33a, the petition repeatedly asserts that Priscilla Villarreal was arrested for exercising

her “undoubted” First Amendment right to ask questions. But this Court has 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). Villarreal’s “just asking

questions” framing 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).

Villareal was arrested for violating Texas Penal Code

section 39.06(c), which does not criminalize merely asking questions. It requires conduct closer to inciting or

commanding a public official to leak nonpublic information for the benefit of the requestor. And it accords

with this Court’s precedent that (1) 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 (2) does not give the press any

special privilege to violate generally applicable laws in

the name of newsgathering, Branzburg, 408 U.S. at 683.

No court has held that section 39.06(c) violates the

First Amendment, either facially or as applied. And Villarreal makes no argument to this Court that section

39.06(c) is “grossly and flagrantly unconstitutional.” DeFillippo, 443 U.S. at 38. Other than reiterating her First

Amendment argument, Villarreal does not contend that

the neutral magistrate erred in finding probable cause to

(1)

2

believe Villarreal violated the law. That should end the

qualified-immunity inquiry.

In the absence of clearly established law demonstrating that section 39.06(c) was unconstitutionally applied

here, Villarreal points to this Court’s precedent regarding other rights—the right to publish lawfully obtained

information (which section 39.06(c) does not prohibit)

and the right against unreasonable search and seizure

(which Respondent Officials did not violate). And her

two-paragraph argument about retaliation fails because

no clearly established law in 2017 would have put Respondent Officials on notice that arresting Villarreal pursuant to a warrant based on probable cause could still violate the First Amendment.

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 obvious under 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 because several alternative grounds exist to support the judgment. And Villarreal’s hyperbolic

assertion that her inability to obtain damages spells the

end of the First Amendment ignores the variety of options available to plaintiffs and courts to protect First

Amendment rights, even if Villarreal cannot recover in

this case. The Court should deny the petition for certiorari.

3

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). “Information 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. The PIA 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 abortion-reporting

data. Id. § 2063.301(c); 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

4

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 for 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).

There is little precedent construing section 39.06(c),

and none (other than this case) concerning how it interacts with the First Amendment. Although two Texas

trial courts concluded that section 39.06(c) was 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

5

2005). Section 39.06(c) has also been cited with approval

by a Texas court of appeals when referring an attorney

to the State Bar for improper ex parte communications

after he asked questions to a member of court staff. Ex

parte JBK, 931 S.W.2d 581, 584 (Tex. App.—El Paso

1996).

II. Factual Background

Villarreal, known locally as “Lagordiloca,” is a citizen

journalist who covers the news in Laredo using her cell

phone and a Facebook account with over 120,000 followers. Pet.App.25a, 217a. Although unaffiliated with any

news organization, the New York Times has nonetheless

called her “arguably the most influential journalist in Laredo.” Pet.App.217a. Her admirers treat her to free

meals, and she occasionally receives fees for promoting

local businesses on her Facebook account. Pet.App.26a.

She has also used her account to solicit donations for new

equipment. Pet.App.26a.

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

name and occupation of a suicide victim. Pet.App.26a.

Several weeks later, she posted a live feed of a fatal traffic accident and revealed the last name of a decedent after again texting with Officer Goodman. Pet.App.26a,

29a. At the time of her reports, the information had not

been made public by the Laredo Police Department.

Pet.App.29a.

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.27a-28a

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

messages Officer Goodman had tried to delete, LPD suspended Goodman for twenty days. Pet.App.28a.

6

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.28a-29a. The affidavits quoted Villarreal’s text exchanges with Officer

Goodman about the suicide and accident victims, explained that the information had not previously been

made public, and noted that Villarreal gained popularity

on Facebook. Pet.App.28a-29a, 52a. The affidavits were

approved by an assistant district attorney, and a justice

of the peace issued the warrants. Pet.App.29a.

Villarreal voluntarily surrendered and was released

on bond the same day. Pet.App.29a. A Texas judge

granted her pretrial habeas petition, finding section

39.06(c) unconstitutionally vague. Pet.App.30a. The district attorney opted not to appeal. Pet.App.30a.

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

Officials”). Pet.App.30a. 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.252a-260a. She also alleged that it would have

been evident to “any reasonable official that [Texas Penal Code section 39.06(c)] was facially unconstitutional.”

Pet.App.239a. Villarreal did not, however, inform the

Texas Attorney General, as required by 28 U.S.C.

§ 2403(b), that her complaint challenged the constitutionality of a state statute. The district court dismissed

the complaint under Rule 12(b)(6) based on qualified immunity. Pet.App.30a, 123a-210a.

7

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 the majority believed that section 39.06(c)

was “grossly and flagrantly unconstitutional,” id. at 541.

But because the Texas Attorney General had not been

notified that the constitutionality of a state law was at

issue, the panel withheld the mandate for sixty days to

allow the Attorney General to weigh in. Id. at 546-47.

Without taking a position on the propriety of prosecuting Villarreal on these facts, Texas intervened to defend the constitutionality of section 39.06(c). See 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 Texas’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 arresting Villarreal for asking questions was obviously unconstitutional and that section 39.06(c) did not apply because Villarreal was not seeking a “benefit” but only practicing

good journalism. Id. at 371-73.

Then-Chief Judge Richman dissented with respect to

the First Amendment ruling, arguing that the independent-intermediary doctrine protected Respondent Officials and that Villarreal’s arrest was based, not on protected speech, but on violations of a facially

8

constitutional statute. Id. at 390-91 (Richman, C.J., dissenting in relevant part).

Because the revised opinion did not conclude that section 39.06(c) was unconstitutional, the State did not seek

en banc rehearing. Respondent Officials did, however,

seek and obtain such review, Pet.App.211a-212a, potentially placing the constitutionality of section 39.06(c)

back at issue.

C. The divided en banc court held (9-7) that Respondent Officials were entitled to qualified immunity.

Pet.App.25a. As the majority summarized, “Villarreal

was arrested on 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.33a. 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.33a.

To reach that conclusion, 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.37a-39a; 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

9

probable cause that state law had been violated.

Pet.App.42a-43a.

The court next expressly rejected Villarreal’s argument that section 39.06(c) was “obviously unconstitutional” as applied to Villarreal and therefore could not be

relied on by Respondent Officials. Pet. App.44a-54a. 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.44a-54a.

The majority also concluded that the precedent relied

on by Villarreal was insufficient to overcome qualified

immunity. Pet.App.55a-60a. Those cases, the court explained, concerned the right to publish, which “is different” from seeking personal gain from soliciting and receiving information. Pet.App.57a. The First Amendment

does not guarantee journalists special access to information, and States are allowed to protect nonpublic information from being released. Pet.App.57a-59a (citing,

inter alia, Branzburg and Houchins).

As for Villarreal’s retaliation claim, the majority concluded that (1) Respondent Officials had probable cause

to arrest Villarreal, and (2) Villarreal offered no evidence

of similarly situated individuals who were not arrested

for the same conduct, applying its view of the narrow exception contemplated in Nieves v. Bartlett, 587 U.S. 391,

406 (2019). Pet.App.60a-62a.

Without addressing this Court’s holding that governments can prohibit information disclosure, the principal

dissent adopted Villarreal’s framing that asking questions to government officials is obviously constitutionally

protected and that Respondent Officials should have

known it. Pet.App.89a-97a (Ho, J., dissenting).

10

D. Villarreal filed a petition for certiorari. This Court

granted, vacated, and remanded for further consideration in light of Gonzalez v. Trevino, 602 U.S. 653 (2024)

(per curiam). Pet.App.22a.

E. On remand and confining itself to the question of

retaliation resolved in Gonzalez, the en banc Fifth Circuit again recognized that Respondent Officials were entitled to qualified immunity, splitting 10-5. Pet.App.2a4a. The majority reasoned that in 2012, this Court explained that it “ha[d] never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.” Pet.App.3a (quoting Reichle

v. Howards, 566 U.S. 658, 664-65 (2012)). It was not until

the Court’s 2019 decision in Nieves, 587 U.S. at 406, that

retaliation plaintiffs could assert in narrow circumstances that, despite the existence of probable cause,

their arrest was still retaliatory. Pet.App.3a.

Because Nieves postdated Villarreal’s arrest here by

two years, the majority concluded that Nieves’ narrow

exception was not clearly established and Respondent

Officials could not have knowingly violated the law when

they arrested Villarreal. Pet.App.3a.

Believing the qualified-immunity issue required

more attention, the dissenting judges would have remanded to the district court for further proceedings.

Pet.App.18a-21a (Higginson, J., dissenting).

11

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 This Court.

Villarreal’s petition hinges on her assertion that

every reasonable official would have known that arresting her under section 39.06(c) violated the First Amendment. But “[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality.” DeFillippo, 443 U.S. at 38. The Texas Legislature

enacted Texas Penal Code section 39.06(c), which is facially constitutional, and Respondent Officials demonstrated probable cause to a neutral magistrate to believe

Villarreal violated it. “Whether an officer is authorized

to make an arrest ordinarily depends, in the first instance, on state law,” id. at 36, so any qualified-immunity

analysis must consider the impact of section 39.06(c) on

Respondent Officials’ conduct.

To overcome qualified immunity, then, Villarreal

must demonstrate that, notwithstanding section 39.06(c),

“existing law . . . placed the constitutionality of [Respondent Officials’] conduct ‘beyond debate.’” District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting alKidd, 563 U.S. at 741). This requires identifying a “legal

principle [that] clearly prohibit[s] the officer’s conduct in

the particular circumstances before him.” Id. (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 interaction with crimes of

solicitation—“will apply to the factual situation the officer confronts.” Mullenix, 577 U.S. at 12.

12

Because Villarreal’s petition does not challenge the

facial constitutionality of section 39.06(c), she must show

that every reasonable official would have known that, despite the existence of a warrant based on probable cause,

the First Amendment provided an as-applied defense to

Villarreal. She cannot do so in light of this Court’s precedent permitting States to prohibit access to certain information and refusing to create a right of the press to

access what others cannot. Houchins, 438 U.S. at 14 (plurality op.); id. at 16 (Stewart, J., concurring in the judgment); Branzburg, 408 U.S. at 683.

Villarreal attempts to fill this legal gap with various

cases regarding the right to publish lawfully obtained information and the requirements for warrants. But neither line of precedent 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. Finally, Villarreal’s short discussion

of retaliation fails to establish that the Fifth Circuit

erred on remand.

A. Texas’s law does not contravene this Court’s

First Amendment precedent.

Villarreal spends much of her argument blurring two

distinct concepts: the right to publish information and

the ability to obtain information. Texas Penal Code section 39.06(c), which provided the statutory basis for Villarreal’s arrest, concerns only the latter. Specifically,

section 39.06(c) prohibits certain forms of access—

namely “solicit[ing] or receiv[ing] from a public servant”

certain nonpublic information for improper reasons.

13

Villarreal asserts that every officer knows he cannot

arrest someone merely for asking questions. Setting

aside the improperly high level of generality of that assertion, merely asking questions is not what section

39.06(c) prohibits. Instead, it falls within this Court’s

precedent that permits States to enact laws keeping certain government-held information from being disclosed.

Houchins, 438 U.S. at 14 (plurality op.); id. at 16 (Stewart, J., concurring in the judgment). Because section

39.06(c), properly construed, is not flagrantly unconstitutional—either facially or as-applied here—Respondent Officials were entitled to rely on it when determining

whether to arrest Villarreal.

1. Section 39.06(c) does not criminalize

merely asking questions.

As this Court has explained, 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, 603 U.S. 707, 724 (2024). Villarreal assumes that “solicits,” as used in section 39.06(c), includes

merely asking questions. Although “solicit” can mean to

“elicit” information, as Villarreal suggests, 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).

In the criminal context, solicitation is more akin to incitement. See, e.g., Hansen, 599 U.S. at 772. For example, 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(a)(2)

14

(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 context. See State v. Kahookele, 640 S.W.3d 221, 225 (Tex. Crim. App. 2021) (interpreting statutes in context of whole statutory

scheme). Section 39.06(d) defines nonpublic information

with respect to Texas’s PIA, which creates a process for

individuals to ask for information from the government.

See supra pp. 3-4. Given that context, it is highly unlikely

that a Texas court would conclude that merely asking for

information that 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 importunity addressed to a particular individual to do some particular thing”).

Like 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)). Thus, Texas

courts are likely to use a narrower, more specialized interpretation of “solicits” drawn from criminal law—

15

particularly when 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).

As with any bar to solicitation, the conduct prohibited

by section 39.06(c) is often verbal in nature. Hansen, 599

U.S. at 771 (“Neither solicitation nor facilitation requires

lending physical aid; for both, words may be enough.”).

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).

Properly construed, then, section 39.06(c) does not

criminalize merely asking questions, and other than the

withdrawn panel opinion in this case, no court has held

that it violates the First Amendment facially or as-applied. Instead, at least one Texas appellate court has

cited it with approval. Ex parte JBK, 931 S.W.2d at 584.

2. States may enact and enforce laws that

keep information confidential.

By prohibiting the solicitation of nonpublic information, section 39.06(c) falls within this Court’s precedent regarding access to government information. As explained by this Court, “[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 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

16

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)

(declining to give out arrestee information does not violate the First Amendment). And as one legal commentator has noted regarding the Espionage Act, “[s]o long as

the retention of classified national security information

is itself unlawful, and so long as 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 the Supreme Court’s jurisprudence that would recognize a First Amendment defense.” Stephen I. Vladeck, Inchoate Liability & the Espionage Act: The Statutory Framework & the Freedom

of the Press, 1 HARV. L. & POL’Y REV. 219, 234 (2007).

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 “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.

17

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). Villarreal attempts to sidestep this precedent (at

24), calling the argument a “strawman” and asserting

that she is not claiming a special right to access information. But she was arrested for violating a law regarding access to information, so she must demonstrate a

First Amendment right to that access.

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).

No court has ever determined (1) whether section

39.06(c) prohibited Villarreal’s actions in the first place,

or (2) whether section 39.06(c) would be unconstitutional

as applied here. Villarreal cites no clearly established

precedent answering either question. At most, then, Villarreal has alleged only a “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.

18

3. Section 39.06(c) is not flagrantly

unconstitutional, facially or as applied.

a. The only “possible exception” to the general rule

that officers are not required to speculate as to a law’s

constitutionality is when a law is “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 does not try to meet this high

standard for good reason. Any claim that section 39.06(c)

is facially unconstitutional would impose a heavy burden

on Villarreal, Moody, 603 U.S. at 723—let alone a claim

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

specifically stated that its prior cases have “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 Villarreal violated a presumptively valid

statute and no controlling precedent holds section

39.06(c) unconstitutional, Respondent Officials could not

have been “required to anticipate that a court would later

hold the [law] unconstitutional,” DeFillippo, 443 U.S. at

38—a First Amendment ruling no court has yet made.

b. That rule applies with even greater force to Villarreal’s assertion (e.g., at 3, 33) 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, id. at

37-38, they cannot be held to predict when an application

will be held unconstitutional—a question that, by its

19

definition, depends on “the factual situation the officer

confronts,” Mullenix, 577 U.S. at 12.

This 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.

This case is contrary to Berge v. School Committee,

on which Villarreal relies (at 24) and in which a government official sought to bar publication of a video by relying on an obviously inapplicable statute. 107 F.4th 33, 43

(1st Cir. 2024). Here, section 39.06(c) did not bar publication, nor was it plainly inapplicable.

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 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. Even assuming a high-level First

Amendment right to ask questions, there are circumstances in which asking questions in a manner that constitutes solicitation is forbidden. E.g., Hansen, 599 U.S.

at 771; Williams-Yulee, 575 U.S. at 437. Whether those

circumstances exist here depends on section 39.06(c)’s

20

constitutionality (which Villarreal does not appear to

challenge) and Villarreal’s actions (which a neutral magistrate determined fit within the statute).

As commenters have noted, “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.”). Villarreal has, therefore, not shown that the

Fifth Circuit’s decision was incorrect, much less that its

ruling conflicts with existing precedent of this Court.

B. Villarreal relies on inapplicable precedent.

Unable to identify precedent that clearly establishes

a First Amendment right to solicit a leak of nonpublic

information in violation of state law, Villarreal cites a variety of cases discussing other constitutional principles.

But the qualified-immunity analysis requires establishing a legal principle that “clearly prohibit[s] the officer’s

conduct in the particular circumstances before him.”

Wesby, 583 U.S. at 63. Villarreal’s precedent falls far

short of that standard.

1. Section 39.06(c) does not infringe the right

to publish lawfully acquired information.

Villarreal repeatedly asserts (at 16-18) a right to engage in “routine newspaper reporting techniques,”

claiming this right was established in Smith v. Daily

Mail Publishing Co., 443 U.S. 97, 103 (1979). But Daily

Mail concerned the press’s First Amendment right to

publish information that it lawfully obtained. Id. And

this Court has recognized a distinction between information that is acquired lawfully and information that is

21

acquired unlawfully. E.g., Bartnicki v. Vopper, 532 U.S.

514, 528 (2001); Branzburg, 408 U.S. at 691. Far from

creating a right to violate the law when gathering the

news, the Court has indicated that the unlawful acquisition may be punished. See Fla. Star v. B.J.F., 491 U.S.

524, 535 n.8 (1989) (noting that the Court had “raised but

not definitively resolved” whether “in cases where information has been acquired unlawfully by a newspaper or

by a source, government may ever punish not only the

unlawful acquisition, but the ensuing publication as

well”); Branzburg, 408 U.S. at 691 (stating that members

of the press could be convicted for “stealing documents

or private wiretapping” in the name of newsgathering).

The cases upon which Villarreal relies turn entirely

on publishing lawfully acquired information—actions

section 39.06(c) does not prohibit. For example, Daily

Mail 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

22

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

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.”).

Accordingly, Villarreal has established, at most, the

right to publish information lawfully obtained—a right

not impacted by section 39.06(c), which concerns only unlawfully soliciting information. Other than that principle,

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 “[t]he dispositive

question is ‘whether the violative nature of particular

conduct is clearly established,’” Mullenix, 577 U.S. at 12

(quoting al-Kidd, 563 U.S. at 742), Villarreal cannot

avoid closer scrutiny of her claim merely by invoking the

First Amendment as a talisman.

2. Villarreal has not shown a violation of the

Court’s warrant precedent.

Villarreal next relies (at 21-23) on a trio of cases concerning Fourth and Fourteenth Amendment requirements for warrants to seize material arguably protected

23

by the First Amendment. But Villarreal has not pressed

any Fourth or Fourteenth Amendment claim in this

Court. Pet. i. Her theory instead requires the Court to

create a new constitutional 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 (at 21-22) 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). In Marcus, the Court

held that a warrant 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” did not have “the safeguards

which due process demands to assure nonobscene material the constitutional protection to which it is entitled.”

367 U.S. at 731-32. And in Roaden, the Court extended

Marcus to warrantless seizures of allegedly obscene material, holding that a magistrate must be afforded “an opportunity to ‘focus searchingly on the question of obscenity.’” 413 U.S. at 497-98, 506 (citations omitted).

In short, these cases 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

24

falls on the unprotected side of the First Amendment

line. Id. at 506.

Villarreal concedes (at 22) that these cases are not directly applicable because they address only the seizure

of papers. To be pertinent here, 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 (emphasis added) (quoting al-Kidd, 563

U.S. at 741). Because Villarreal’s argument relies on the

extension of precedent, the Fifth Circuit’s decision does

not conflict with existing precedent on the question of

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

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

Further, as the en banc majority noted, Respondent

Officials obtained warrants for Villarreal’s arrest.

Pet.App.28a-29a. And, unlike in Marcus, the warrants

were supported by eight-page 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 unlawful solicitation, Pet.App.52a. 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. Villarreal’s third case (at 22), Stanford v. Texas,

strays further from the facts of this case, as it concerned

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

25

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 481-85, 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,

563 U.S. at 742-43. Assuming there can, Villarreal would

at minimum need to directly challenge the breadth of the

arrest warrants by specifying how the language of the

warrant was overbroad. See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557-58 (2007). But she has not.

Pet.App.253a-288a. The arrest warrants did not violate

Stanford or its underlying principles, and Villarreal still

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

3. Hope does not save Villarreal’s claim.

Because “none of the [Court’s] cases squarely governs the case here,” Mullenix, 577 U.S. at 13 (citation

modified), 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

26

common-sense principle that because qualified immunity

ultimately turns on notions of “fair notice,” 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 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). To prevent the exception from swallowing the rule, Hope itself made clear

that the obviousness of the application must be determined based on “the specific conduct in question.” Id. 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.”

See supra pp. 15-20; see also Vladeck, supra at 231 (recognizing that there is “a colorable argument that a reporter may be prosecuted . . . for soliciting the unlawful

removal of classified governmental information”). 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).

C. Villarreal fails to identify a conflict with the

Court’s retaliation precedent.

Villarreal spends little time attempting to demonstrate that the Fifth Circuit’s decision on remand violated this Court’s retaliation precedent. Pet. 26-27. She

does not question the majority’s timeline: Her arrest

27

occurred before the Court recognized in Nieves that, in

narrow circumstances, an arrest may still violate the

First Amendment despite the existence of probable

cause. Pet.App.3a-4a. Because this legal principle was

not clearly established when Villarreal was arrested in

2017 (and the clarity provided by Gonzalez did not come

until 2024), Respondent Officials are entitled to qualified

immunity.

In response, Villarreal first returns to her argument

(at 26) that Respondent Officials should have known they

could not arrest her for “exercising an undoubted First

Amendment right.” For the reasons explained above, supra pp. 15-26, she has not demonstrated that it would

have been apparent to every reasonable official that, in

light of section 39.06(c), her First Amendment right was

“undoubted.”

Next, Villarreal asks the Court (at 26) to draw a line

between probable cause based on conduct versus speech,

suggesting it would have violated the First Amendment

in Reichle to have arrested the plaintiff, not for physically contacting the Vice President, but only for criticizing him. But that is not the appropriate analogy. Criticizing the Vice President does not violate any statute; soliciting information in violation of Texas Penal Code section

39.06(c) does. Thus, the relevant question when Villarreal was arrested in 2017 was whether there was probable cause to believe she violated section 39.06(c), a facially constitutional statute. And other than reciting her

First Amendment argument, Villarreal makes no argument that probable cause was lacking. The presence of

probable cause defeats her retaliation claim under the

law that existed at that time. See Reichle, 566 U.S. at 66465.

28

II. The Fifth Circuit’s Ruling Does Not Conflict

with Decisions from Other Circuits.

Villarreal’s next argument in support of certiorari (at

32-36) is that the Fifth Circuit’s decision conflicts with

those of other circuits. It does not. Not one of those cases

involved a statute regulating access to government data,

found a police officer liable for monetary damages because he relied on a facially valid warrant based on a facially constitutional statute, or concerned retaliation. 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).

A. 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). 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 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.

The final statute 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

29

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 saying “F--k the Draft” at an indoor protest, 403 U.S. at 26.

Although Leonard involved “milder profanity,” the Sixth

Circuit concluded that distinction made no constitutional

difference. 477 F.3d at 359.

Leonard is of little use because, as already discussed,

section 39.06(c) regulates access to information—not

publication (or public utterance) of that information. Supra pp. 13-17. 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 that would have put all reasonable officials on notice that their actions under section 39.06(c)

might violate the Constitution, supra pp. 15-26.

B. 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. Even though the

officers obtained a warrant before making the arrest, id.

at 1157, there was a body of case law dating back decades

that would have given a reasonable officer notice of the

unconstitutionality of the arrest. United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397

(1989). These cases were so clear that the Eighth Circuit

found it “fairly inexplicable” that neither the prosecutor

nor the magistrate who issued the warrant recognized it.

30

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

case. Supra pp. 15-26.

Two cases Villarreal cites from the Tenth Circuit (at

33-34) are similarly distinguishable. 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

protected. 73 F.4th 1162, 1168-71 (10th Cir. 2023) (relying on Hill, 482 U.S. at 453-54). And Mink v. Knox involved writing a parody rather than criticizing an officer,

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).

C. 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. Accordingly, no circuit split requires this Court’s resolution.

31

III. No Additional Reasons Exist to Grant Certiorari.

A. Beyond Villarreal’s failure to identify grounds

warranting certiorari, there are other reasons to deny it.

This is far from an “ideal vehicle” to resolve the questions raised. Contra Pet. 36. This Court “review[s] judgments of the lower courts, not statements in their opinions,” Amgen, Inc. v. Sanofi, 598 U.S. 594, 615 (2023) (citing Black v. Cutter Laboratories, 351 U.S. 292, 297

(1956)), and has reminded courts to “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 additional “ground[s]

upon which to dispose of the 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. By Villarreal’s own admission, she received

information from Officer Goodman. Pet.App.234a-235a.

But Villarreal does not make an argument that this

Court’s right-to-receive precedent clearly establishes a

right here. See, e.g., Va. State Bd. of Pharmacy v. Va.

Citizens Consumer Council, Inc., 425 U.S. 748, 756-57

(1976); Kleindienst v. Mandel, 408 U.S. 753, 762-63

(1972). Nor could she. Recognizing a First Amendment

right to receive confidential information held by the government would, at a minimum, create tension with the

Court’s holding that there is no First Amendment right

to “have access to particular government information.”

32

Houchins, 438 U.S. at 14 (plurality op.); id. at 16 (Stewart, J., concurring in the judgment). Until this Court addresses the intersection of those lines of precedent, Villarreal has no clearly established right to receive information, and Respondent Officials had grounds to arrest

Villarreal under section 39.06(c) that did not violate the

Constitution.

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

ground for judgment. Pet.App.51a-54a. 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). Having found evidence that

the Respondent Officials properly obtained a warrant

with substantive affidavits demonstrating the violation

of a presumptively valid law, Pet.App.52a, the Fifth Circuit properly held that the Respondent Officials were entitled to the protection the doctrine affords, Pet.App.53a.

B. Villarreal further attempts to grab the Court’s attention (at 28) by claiming the Fifth Circuit’s decision

spells the end of the First Amendment. Quoting the Fifth

Circuit dissents, Villarreal’s petition suggests that government officials in the Fifth Circuit “don’t have to comply with the First Amendment at all,” Pet.App.101a (Ho,

J., dissenting); 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.102a (Ho, J., dissenting); and that officials will

wield constitutional laws as “cudgels” to silence speech,

Pet.App.86a (Willett, J., dissenting). The dissents’ fears

are unfounded. The majority’s recognition of qualified

33

immunity here did not eliminate the First Amendment

any more than this Court’s recognition of qualified immunity in Mullenix (or any other excessive-force case)

eliminated the Fourth Amendment.

Even so, courts are not powerless to enforce First

Amendment rights, even if qualified immunity prohibits

damages in this case. 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

1168-71. And retaliation claims now remain available for

those arrested for their speech even if probable cause exists for their arrest. Gonzalez, 602 U.S. 653.

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

unconstitutional or being unconstitutionally 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., br, Inc. v. Wong, 91 F.4th 318

(5th Cir. 2024); Freedom From Religion Found. v. Abbott, 955 F.3d 417 (5th Cir. 2020). All of these options are

available to protect First Amendment rights, regardless

of whether Villarreal succeeds in this lawsuit.

C. Finally, Villarreal vaguely challenges the doctrine

of qualified immunity. Her argument (at 29) that it is unfair that officials will not be held responsible for First

Amendment violations unless a court has held the governing statute unconstitutional is nothing more than a

request to weaken the Court’s qualified-immunity precedent. The same is true for Villarreal’s suggestion (at 30)

that the text of section 1983 requires compensation for

34

any constitutional violation—it is in effect an argument

to end qualified immunity.

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 no

reason to eliminate that breathing room in this case or

any other.

C O NC LU SIO N

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

WILLIAM R. PETERSON

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

William.Peterson@oag.texas.gov

(512) 936-1700

NOVEMBER 2025