A federal court will decide whether it is constitutional for reporters to ask questions

The Alliance for the Defense of Freedom (ADF) is best known for its work on controversial religious freedom cases. They famously came to the defense of Jack Phillips, the baker who was the subject of a high-profile lawsuit after he refused to make a cake for a same-sex wedding. Recently, the organization argued before the US Supreme Court in favor of Loria Smith, a web designer who preemptively challenged a Colorado law so she wouldn’t have to design wedding sites for gay couples in violation of her religious beliefs.

They are not known for defending profanity-laced, left-leaning journalists whose bread and butter sometimes consists of criticizing the police. They do that anyway.

That reporter is Priscilla Villarreal, whose presence in Laredo, Texas, has been linked to her vulgar comments about law enforcement and who was jailed by police for the crime of asking the government questions, getting answers, and publishing those answers. That seems like a pretty egregious violation of her First Amendment rights. Yet that’s the question that confounded the 5th U.S. Circuit Court of Appeals in a case that could have far-reaching implications for anyone involved in journalism, regardless of their political affiliation.

In 2017, Villarreal found herself in a jail cell after posting two stories on her popular Facebook page, Lagordiloca, which has attracted 202,000 followers as of this writing. The first story was about a border patrol agent who committed suicide; another revealed the identity of a family involved in a fatal car accident. The stories were standard. But Villarreal had already drawn the ire of the local police department with his report, which included, among other things, live footage of an officer choking someone at a traffic stop and harsh criticism of the local prosecutor.

So the Laredo Police Department (LPD) prosecuted her for the reporting, citing a Texas law that prohibits obtaining “non-public information” from the government if the person doing so — in this case, Villarreal — has “the intent to profit.” ” It is a rich irony that the LPD gave her the information she was looking for. It is even more absurd that her alleged “intent to take advantage” in seeking information was gaining more and more followers on Facebook.

This is the logic that would make any kind of journalistic activity illegal, given that all media seek non-public information (this is called “reporting”) and do so in order to generate income through subscriptions or social media followers (this is called “business “).

Which brings me back to ADF. “Ms. Villarreal’s right to gather and publish truthful news has been clearly established for decades,” ADF attorneys Rory T. Gray and John J. Bursch write in their friend short. “It was plainly unconstitutional for the defendants to attempt to prohibit Ms. Villarreal from using standard journalistic techniques to discover and report news. The defendants’ harassment of Ms. Villarreal, attempts to prohibit her from seeking nonpublic information from officials, and better treatment from the general public constitute a clear violation of the First Amendment .”

Villarreal has little in common with Jack Baker and Lorie Smith. I doubt the team at ADF take the time to support her because they like everything she has to say or the way she chooses to say it. That’s because they seem to understand that constitutional rights don’t just apply to those we find attractive.

“The First Amendment goes beyond tribalism. It’s about whether the government can remove people and ideas from the marketplace just because it doesn’t like their views,” Gray says. Reason. “Americans deserve better and the Constitution demands it. In this case, Ms. Villarreal’s victory helps preserve free speech for all of us.”

That concept is lost on many these days in a country where political tribalism often trumps principle—where Team Blue and Team Red support free speech as long as they like what they hear. Indeed, some of the judges on the 5th Circuit—often described as a conservative body—may be lost, as evidenced by their reactions to Villarreal’s lawsuit.

Because of Villarreal’s arrest, the U.S. District Court for the Southern District of Texas granted Laredo police qualified immunity. In other words, they concluded that it was not “clearly established” that imprisoning journalists for journalism violated the Constitution, despite the fact that we would probably expect an eighth grade high school student to reach the opposite conclusion. The 5th Circuit Court of Appeals reversed that initial decision. “If [this] is not an obvious violation of the Constitution, it is difficult to imagine what would be,” wrote Justice James C. Ho.

But a majority of the 16-judge panel of the 5th Circuit Court agreed to rehear the case en banc, indicating dissatisfaction with Ho’s opinion. He will do it tomorrow. For an insight into the potential reasons for the judges’ opposition, we can look at the words of Chief Justice Priscilla Richman: “Villareal’s [sic] The complaint says he ‘sometimes enjoys a free meal from grateful readers,. . . occasionally receives honoraria for promoting local business [and] used her Facebook page [where all of her reporting is published] ask for donations for new equipment needed for its continuation efforts of citizen journalism,” she wrote in opposition.With all due respect, the majority opinion is not a basis for an opinion which no reasonably competent official could objectively have thought that Villareal [sic] obtained information from her hidden source within Laredo Police Department with ‘intent to take advantage’.”

In other words, the cops’ behavior was justified because Villarreal sometimes gets a free lunch from its readers and viewers. It’s an interpretation that would be laughable if it weren’t published by one of the most influential courts in the land, and written by one of the most powerful jurists today. There is no doubt that Richman, also known for her conservative jurisprudence, would have come to a similar conclusion if she had been a little more ideologically aligned with the plaintiff.

But ADF is not alone in trying to influence Richman et al. from siding with the government. Also writing in support of Villarreal are Project Veritas, an extreme right-wing group founded by James O’Keefe; Americans for Prosperity, a conservative-libertarian activist organization; the Cato Institute, a libertarian think tank; Center for Constitutional Accountability, an advanced think tank; and the Electronic Frontier Foundation, a group that defends civil liberties in the digital space.

The Venn diagram connecting these groups has very little overlap. Finding something that everyone agrees on in practical terms would be a difficult task. But I can agree on at least one thing, and that is that your constitutional right to free speech should not live or die based on the popularity of what you say. This basic principle is lost on some in the 5th round, even though they have a chance to right that wrong tomorrow.

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