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It is unusual for all 16 judges of the 5th U.S. Circuit Court of Appeals to convene and hear a case. This month, they will do so to consider a lawsuit involving a foul-mouthed Latina firebrand known as La Gordiloca, an unlikely citizen journalist who has upended politics as usual in her border town of Laredo.
Her case pits the First Amendment against qualified immunity, a legal doctrine that shields public officials from being sued individually unless they’ve violated a “clearly established” constitutional right. Although it involves a freelance, untrained citizen journalist, the case has widespread implications for journalism in Texas and beyond. A similar case is already working its way up through the courts in Fort Bend County.
Priscilla Villarreal didn’t set out to piss off powerful people around Laredo. It started one day in 2015 when she heard sirens blaring outside her house. She went outside and saw a hostage situation unfolding; she began recording video on her phone as shots were fired and continued as the victims, two dead girls, were carried out of the house. She uploaded clips to Facebook; almost one million people saw them.
Villarreal’s day job was supervising wrecking crews as they cleaned up tractor-trailer crash scenes, but unedited videos chronicling the dark corners of her city became her calling. Her reach exploded with the release of Facebook Live, and along the way she picked up a moniker: La Gordiloca, or “the big crazy lady.” She now has 200,000 followers watching her livestreamed crime scene videos and listening to her stream-of-consciousness soliloquies, mostly in Spanish, about everything from cooking and local restaurants to well-sourced gossip about corrupt cops and politicians.
It’s the latter that began turning heads around Laredo, a South Texas town of a quarter-million people. In 2017, when a local U.S. Border Patrol agent died by suicide, Villarreal learned his name from a police officer and reported it publicly before the police issued a statement. A month later, she posted the name of a family involved in a deadly car crash, again after verifying it with a Laredo police officer.
Police started harassing her, she says, including in a filmed incident in which a police officer prevented her from being near a crash site where she was working her day job with the cleanup crew. Six months after her initial reports naming the people involved in the two incidents, Laredo police arrested Villarreal for twice breaking a little-known state law — one under which the Webb County district attorney had never before prosecuted anyone — involving soliciting or receiving information from a public servant that “has not been made public” with an intent to obtain a benefit.
“When I would report on whatever it was that was going on that had to do with the cops, they had to stop what they were doing,” Villarreal said. “I’m not saying all of them, but, you know, not being able to beat somebody up or to do something that was gonna get caught on camera — I think that that’s what they didn’t like about what I was doing.”
Villarreal’s charges were dismissed after a judge found them “unconstitutionally vague.” In 2019, she brought a lawsuit against the Laredo Police Department, along with the city of Laredo, Webb County, the local district attorney and others who she said violated her First Amendment rights by arresting her for doing journalism. A district judge threw out the case, ruling that the officials were protected by qualified immunity because they were performing official duties.
On appeal, a three-judge panel of the 5th Circuit disagreed.
“If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question,” Judge James C. Ho wrote in a strongly worded opinion. “If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”
But what was obvious to Ho, an outspoken and controversial judge appointed by Donald Trump in 2017, may have not been so obvious to other judges on the conservative 5th Circuit.
This month, the court, which usually hears cases with rotating panels of three judges, will convene its entire panel of 16 judges in New Orleans to rehear the case, weighing the right of citizens to ask questions of their public officials. (The court has 17 seats, but one is vacant.)
An “en banc review,” as it’s called, allows the full panel of circuit court judges to potentially overturn a ruling by its own court. It’s used in cases of broader importance in which the court has handed down contradicting opinions or consensus on an issue hasn’t been reached.
The John Minor Wisdom United States Fifth Court of Appeals building in New Orleans, Louisiana.
Credit:
Jolie McCullough/The Texas Tribune
While the court does not have to make public its reasons for an en banc review, Chief Judge Priscilla Richman wrote a dissenting opinion in Villarreal’s case, stating that Ho’s ruling “is likely to confuse the bench and the bar as to when a First Amendment violation is ‘obvious’ for purposes of qualified immunity.”
Richman argued that there was a basis for a reasonable law enforcement officer to think that Villarreal violated the law because she might stand to benefit from the information’s release. “The majority opinion holds that every reasonably competent law enforcement officer would have understood that a ‘benefit’ … does not include a ‘good journalist’ gathering information. But the statute does not exclude journalists, ‘good’ or otherwise,” Richman wrote. “Journalists generally gather information ‘with intent to benefit,’ for example, to sell newspapers or magazines, or to attract viewers on television, computer, iPad or smart-phone screens.”
That stance — and the fact that the en banc review is taking place — is particularly troubling for First Amendment advocates, who see the statute itself as violating the Constitution. “As a matter of law and policy, qualified immunity does not excuse obvious constitutional violations — even if laundered through state law, and especially if premeditated,” attorneys for the Institute for Justice, a public interest law firm focused on constitutional rights, wrote in an amicus brief in the case.
Another amicus brief, filed by the Texas Press Association and a handful of other journalism organizations and joined by The Texas Tribune and the Dallas Morning News, argues that “the troubling facts of this case and the district court’s alarming application of qualified immunity to them call the legality of basic journalism into question.”
The First Amendment right to “freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances” dates back to the enactment of the Bill of Rights in 1791. Qualified immunity, as a concept, came much later. In 1961, a group of Black and white clergymen were arrested while attempting to integrate a segregated bus terminal waiting room. They sued, and in 1967, the Supreme Court held that the officers who arrested the members of the clergy had immunity from legal liability because it could be reasonably assumed they were acting in good faith when they enforced the law.
In the years since, the concept of qualified immunity has been strengthened to the point that it’s very hard to sue public officials, including police, for violations of rights unless the specific situation has already been litigated and found to violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”
Qualified immunity is supposed to give police and other public officials the legal protection they need to do their jobs in challenging situations and to make important split-second decisions without fear of reprisal. When qualified immunity clashes with the First Amendment, it pits journalists’ right to do their jobs — and, by extension, the public’s right to know about the actions of its officials — against those officials’ right to be protected from lawsuits over their behavior, which may violate those rights.
“This is a developing area of law, how qualified immunity is going to apply to First Amendment cases and, in particular, to instances that don’t involve split-second decision-making,” said Jaba Tsitsuashvili, an attorney at the Institute for Justice.
“When you have these kinds of clear First Amendment violations, what do you do?” Tsitsuashvili added. “Do you do what qualified immunity has told judges to do for a long time, which is essentially, you know, close your eyes and bury your head in the sand to the actual circumstances of what’s happening, or do you engage with the reality of the situation and say, ‘No, this is clearly and obviously unconstitutional conduct’?”
As the en banc review, slated for Jan. 25, nears, the questions raised by Villarreal’s case grow increasingly relevant. In Fort Bend County, another citizen journalist named Justin Pulliam, whose YouTube channel “Corruption Report” has more than 60,000 followers, has run afoul of local authorities for filming their interactions with people in the county.
In December 2021, Pulliam was arrested for trying to record a confrontation between police and a mentally ill man. The man’s mother had attempted to get mental health services for her son, and as the police pulled up, Pulliam filmed himself asking the woman for permission to be on her property, which she gave. Despite that, police arrested Pulliam when he refused to move back across the highway and charged him with interfering with public duties.
Pulliam filed suit last month against Fort Bend County, the county sheriff and other police officers for violating his First Amendment rights. “These unconstitutional attacks on Justin’s journalism are a threat not only to Justin, but also to independent citizen-journalists everywhere who have the free-speech right to cover — and criticize — local-government actions,” the complaint states.
Justin Pulliam was arrested in Fort Bend County after he filmed a confrontation between police and a mentally ill man. He has sued, citing First Amendment violations.
Credit:
Mark Felix for The Texas Tribune
Pulliam, who was active in conservative politics during college, had his worldview challenged when he began following the police scanners and filming cops interacting with the public. “I think the local governments have an enormous impact on our daily lives, and it’s largely overlooked,” Pulliam said.
“If you film the police or you criticize the government, or even simply just don’t go along with whatever they feel the message should be, then you’re subject to retaliation, harassment and even arrest and criminal prosecution? That just doesn’t happen in a free country,” Pulliam says. “I want everyone to know, across the country, that they can be a citizen journalist. They can go film the police, they can go to city council. They can even criticize the government at city council.”
Villarreal hopes that her lawsuit will help ensure that Laredo police won’t prevent her from doing her job — she’s had scary run-ins with officers since the suit was filed, including a confrontation with an officer who used his car to prevent her from joining a funeral procession she says she had permission to be a part of. She now openly carries a pistol, she says. “The being scared has lessened, but at the end of the day, it is what it is,” Villarreal said. “There’s those few [cops] that don’t like me, but I think that there’s more of those that support what I’ve done.”
As for her case, her attorney JT Morris said he feels confident in the outcome.
“Priscilla was arrested for asking a police officer newsworthy facts as part of reporting the news,” Morris said. “And government officials who violate First Amendment rights like that have to be held accountable.”
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