Trump Judge James Ho fights lonely battle against censorship in Texas.
Can the government arrest and jail citizens for criticizing public officials? The answer might seem obvious in light of the First Amendment. In the 5th Circuit Court of Appeals, however, it is not. Instead, the court has blessed the detention of one Texas resident for daring to criticize state officials, and may be on the brink of doing so again. This approval of censorship by force should come as no shock from the far-right 5th Circuit. What’s unusual is who has decided to take the strongest stance against it: James Ho, an ultra-conservative Donald Trump nominee. In two recent major cases, Ho has vociferously condemned Texas’ brutal retaliation against critics of the government, condemning the practice as “totalitarian.” It is an ominous sign of the 5th Circuit’s increasingly authoritarian jurisprudence that Ho must beg his colleagues to safeguard the most foundational guarantees of free speech.
Ho is an unlikely candidate for this role. Since his appointment in 2018, he has gained notoriety as a hard-right firebrand eager to fight the culture wars from the bench. He fills his opinions with trollish partisan rhetoric, railing against abortion, gun control, vaccine mandates, cancel culture, and the “woke Constitution.” Recently, he announced that he would boycott clerks from Yale Law School, asserting (dubiously) that the school silenced conservative voices. As a rule, you would not want Ho to be in charge of protecting your constitutional rights, unless you have the kind of grievance that would resonate with Tucker Carlson.
And yet, in two of the most disturbing First Amendment cases of the decade so far–Gonzalez v. Trevino and Villarreal v. Laredo–Ho has emerged as an impassioned opponent of crass, carceral censorship. Start with Gonzalez. In 2019, 72-year-old Sylvia Gonzalez ran a successful campaign for city council in Castle Hills, Texas, a town of 5,000. She heard from residents that the current city manager, Ryan Rapelye, was doing a poor job. So, once on the council, Gonzalez launched a nonbinding citizen petition urging the council to replace Rapelye.
After a council hearing on the city manager, Gonzalez briefly placed the petition papers in her binder. When the mayor, Edward Trevino, asked her for the petition, she located the papers and handed them to him. At the time, both Gonzalez and Trevino said that her misplacement of the petition was a mistake. Yet this brief exchange formed the basis of an alleged conspiracy that would eventually place Gonzalez in jail.
Trevino, it turns out, saw Gonzalez as an enemy. As mayor, he had appointed Rapelye to be city manager, and he was infuriated that the new councilmember contested his decision. At this point, the city’s Police Chief John Siemens–whom Trevino had also appointed–deputized a friend, Alex Wright, to investigate Gonzalez. (Wright was not a detective or even a law enforcement officer of any kind.)
Wright claimed that, when Gonzalez placed the petitions in her binder, she violated an obscure Texas law that bars individuals from “conceal[ing]” any “government record.” Normally, a person charged with such a minor crime is asked to appear before a judge at a specific date. But Wright allegedly deployed a process that’s usually reserved for violent felonies, ultimately procuring an arrest warrant. So Gonzalez turned herself in at the local jail. There, she was forced to don an orange shirt and sit handcuffed to a metal bench for a day. Jail staff would not allow her to stand up or use the bathroom in privacy.
When the district attorney caught wind of these events, he dropped all charges. Gonzalez then sued the group said to be behind the arrest, accusing them of retaliating against her in violation of the First Amendment. In July, a three-judge panel of the 5th Circuit ruled against her. The panel reasoned that law enforcement had probable cause to arrest Gonzalez, and that she had not proven that “similarly situated individuals” had engaged in the same “criminal conduct” without getting arrested. Thus, she failed to demonstrate that the arrest was a retaliation against her free speech. The majority granted immunity to Trevino, Siemens, and Wright.
The 5th Circuit then considered rehearing the case en banc, with every judge weighing in. On Wednesday, the full court refused to revisit it by a 10-6 vote. Six judges dissented, including Dana Douglas, Joe Biden’s new addition to the court. Yet Ho was the only dissenter to write an opinion. He sounded furious. The 5th Circuit, he wrote, had left the American people “vulnerable to public officials who choose to weaponize criminal statutes against citizens whose political views they disfavor.” He decried Gonzalez’s “tormenters-in-office” for violating “the most fundamental value in American democracy” by using the “coercive powers of government to punish and silence their critics.” And he insisted that Gonzalez had every right to sue them for their “heinous” and “unconstitutional” scheme to arrest her for “stating unpopular viewpoints.”
“In America, we don’t allow the police to arrest and jail our citizens for having the temerity to criticize or question the government,” Ho declared. It turns out, though, that we do–at least in the 5th Circuit.
Gonzalez marked the second time that Ho has castigated his colleagues for flouting these principles. In another recent case, Villarreal v. Laredo, the 5th Circuit considered the plight of Priscilla Villarreal, a resident of Laredo, Texas. A citizen journalist, Villarreal puts her reporting on Facebook, often live-streaming from car crashes, crime scenes, and other events of public interest. She then provides her own unfiltered commentary on the footage.
Unsurprisingly, Villarreal has repeatedly earned the ire of Laredo officials. In one report, she noted that the district attorney dropped an arrest warrant for a relative of Marisela Jacaman, a member of his own staff. In another, she live-streamed police officers strangling a driver they had pulled over. Law enforcement expressed their contempt for her journalism.
In 2017, Villarreal uncovered the name of one local who died by suicide and another who died in a car crash. In both cases, she called a police officer to confirm their identities–a standard reporting practice. When Laredo officials discovered these calls, they secured a warrant for her arrest. Why? Prosecutors cited a provision of Texas law–one they had never before enforced–that criminalizes the act of soliciting or receiving nonpublic information “from a public servant” with “intent to obtain a benefit.” Prosecutors alleged that Villarreal violated this law because she sought the “benefit” of more Facebook followers.
Who approved the arrest warrant application? None other than Marisela Jacaman, the district attorney staffer whom Villarreal had criticized for allegedly helping to get a relative off the hook.
So Villarreal turned herself in. While the police booked her, officers allegedly took pictures of her in handcuffs and openly mocked her. She was then taken to a local jail. A judge threw out the charges, finding the law unconstitutionally vague.
Later, Villarreal filed a lawsuit alleging that Laredo officials violated her First Amendment rights. In August, a three-judge panel led by Ho ruled in her favor. In his majority opinion, Ho framed the case as a simple one: “If the First Amendment means anything,” he wrote, “it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.” It should “be patently obvious to any reasonable police officer,” he continued, “that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights.” He therefore denied the officials immunity.
In a concurrence to his own majority opinion, Ho went further. “This is an exceedingly troubling case,” he opined. “It’s beyond the pale when law enforcement officials weaponize the justice system to punish their political opponents.” It is, in fact, downright “totalitarian.” Prosecutors’ view of Texas law would “condemn countless journalists” to arrest and incarceration. That, Ho concluded, cannot be squared with the First Amendment.
That wasn’t the end of the story. The full 5th Circuit voted to rehear the case–a sign that a majority of judges may disagree with Ho. During oral arguments in January, he questioned the defendants’ lawyers incredulously. “You can’t arrest people for asking questions of their government for information,” he said. The lawyer responded that, when an individual seeks the information outside of a formal public records request, they are, indeed, breaking Texas law. There is a real chance that the 5th Circuit will soon permit this criminalization of journalism.
A cynic might say that Ho has seized on this issue to prove he isn’t a partisan hack, or to draw accolades from a hostile media. The more straightforward explanation is that, on this issue, Ho is not a lunatic, and so he can see his colleagues’ lunacy with unusual clarity. It should not be difficult to understand why government conspiracies to jail critics are a danger to the First Amendment. It is only a tough task for far-right judges whose desire to back the blue at all costs overrides freedom of expression. It’s gravely concerning that Ho, of all people, has had to step up as the 5th Circuit’s voice of reason