A Texas Reporter Busted for Asking Questions Asks SCOTUS To Reject the Criminalization of Journalism
In 1973, the Texas Legislature made “misuse of official information” a misdemeanor. The law, part of a chapter dealing with “abuse of office,” applied to “a public servant” who “acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by” information that “has not been made public” but to which “he has access in his official capacity.” The statute also covered “a public servant” who “speculates or aids another to speculate on the basis of the information.”
Forty-four years later, police and prosecutors in Laredo deployed an amended and expanded version of that anti-corruption law against Priscilla Villarreal, a local journalist whose freewheeling news coverage and criticism of law enforcement officials had irked them. By asking police questions about a public suicide and a fatal car crash for stories on her locally popular Facebook page, they claimed, she had committed felonies punishable by two to 10 years in prison.
In January, the U.S. Court of Appeals for the 5th Circuit said there was nothing “obviously unconstitutional” about arresting Villarreal for engaging in basic journalism. Now she is asking the U.S. Supreme Court to review that decision, which is blatantly at odds with freedom of speech and freedom of the press.
In a petition that it filed on Villarreal’s behalf this week, the Foundation for Individual Rights and Expression (FIRE) urges the justices to uphold well-established First Amendment rights by reviewing the 5th Circuit’s ruling. “If they can throw me in jail for asking a question, none of our free speech rights are safe,” Villarreal says. “Our First Amendment rights don’t depend on our popularity with local politicians. My case is not just about me, but also the rights of every American.”
Along with several other journalists, I am participating in a brief supporting Villarreal’s appeal. The brief will highlight this case’s alarming implications for quotidian journalism. Those implications stem from the abuse of a vague, inartfully worded state law that was aimed at preventing public officials and their cronies from taking financial advantage of inside information.
The 1973 law against “misuse of official information,” now Section 39.06 of the Texas Penal Code, was repeatedly amended over the years. Legislators broadened the definition of the offense, reclassified it as a felony, and expanded the law beyond government officials. Under Section 39.06(c), “a person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he solicits or receives from a public servant information” that “has not been made public.”
The Texas Penal Code defines “benefit” as “anything reasonably regarded as economic gain or advantage.” According to the police affidavits that supposedly justified Villarreal’s 2017 arrest, the “benefit” that she sought was a boost in Facebook traffic. According to the 5th Circuit, the “benefit” that Villarreal derived by maintaining “her first-to-report reputation” included ad revenue and “free meals from appreciative readers.” This commodious understanding of “economic gain or advantage” is a far cry from the corruption that Section 39.06 was designed to curtail, and it would apply to any journalist who receives any sort of compensation for his work, including salaried employees of news organizations as well independent practitioners like Villarreal.
Section 39.06 defines “information that has not been made public” as “any information to which the public does not generally have access” and that “is prohibited from disclosure” under the Texas Public Information Act (TPIA). Although the arrest affidavits did not address that element, the most likely candidate for a TPIA exception in this context is Sec
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