A Texas Reporter Was Arrested for Asking Questions. The State Says That’s No Big Deal.
Next month, the Supreme Court will consider whether to take up Villarreal v. Alaniz, a First Amendment case involving a Laredo, Texas, journalist who was arrested for asking questions. Although that is literally what happened to local crime vlogger Priscilla Villarreal in 2017, Texas Attorney General Ken Paxton, echoing an appeals court ruling against her, calls that description “clever but misleading” in a brief opposing her petition for Supreme Court review.
“Priscilla Villarreal was supposedly arrested just for asking questions,” the brief says. In reality, Paxton argues, she was arrested for soliciting the commission of a crime: the unauthorized release of information about a public suicide and a fatal car accident. Villarreal asked Laredo police officer Barbara Goodman to confirm information about those incidents, and Goodman willingly did so. According to Laredo police and local prosecutors, the text messages that Villarreal exchanged with Goodman constituted two felonies under an obscure and abstruse Texas statute addressing “misuse of official information.”
Paxton’s framing aims to avoid the obvious First Amendment implications of criminalizing basic journalism. He argues that the U.S. Court of Appeals for the 5th Circuit was right to rule that the Laredo officials responsible for Villarreal’s arrest were protected by qualified immunity, a doctrine that bars federal civil rights claims unless they allege violations of “clearly established” law. In a January 2024 decision, Judge Edith Jones concluded that arresting Villarreal for seeking information from Goodman was not “obviously unconstitutional.”
That assessment provoked four vigorous dissents authored or joined by seven of Jones’ colleagues. “If the First Amendment means anything,” Judge James C. Ho wrote, “surely it means that citizens have the right to question or criticize public officials without fear of imprisonment.” The decision also dismayed civil libertarians and journalists across the country, who recognized the threat it posed to freedom of speech and freedom of the press. Villarreal’s Supreme Court petition, which the Foundation for Individual Rights and Expression (FIRE) filed in April, has attracted supporting briefs from an ideologically diverse set of organizations and individuals (including me). The briefs emphasize the chilling impact of letting police punish people for doing what reporters do every day: seek and publish information from government sources.
According to Paxton, however, there is nothing to see here. Dismissing “the doomsday scenario predicted by the [5th Circuit] dissents and adopted by Villarreal,” he tries to obscure what happened to her by describing her questions as “akin to incitement.” Without taking a position on whether Villarreal should have been arrested, he argues that it was reasonable for Laredo police to think she had broken the law and that, even if applying it in this situation was unconstitutional, they had no way of knowing that.
Both of those arguments are highly dubious. Let’s start with the claim that the cops reasonably believed Villarreal had committed crimes.
A judge dismissed the charges against Villarreal after concluding that the law on which the cops relied, Section 39.06(c) of the Texas Penal Code, was unconstitutionally vague. It is not hard to see why.
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…the public servant has access to by means of his office or employment” when that information “has not been made public.” Seven years after Villarreal’s arrest, Laredo officials still have not satisfactorily explained exactly how her conduct fit the elements of that offense.
The Texas Penal Code defines “benefit” as “anything reasonably regarded as economic gain or advantage.” What “benefit” did Villarreal allegedly seek to obtain by asking Goodman about the suicide and the accident? According to the arrest affidavits, the benefit was a boost to traffic on the locally popular Facebook page where she posted her video reports. In the past, Jones noted, Villarreal also had received “free meals ‘from appreciative readers,’ ‘fees for promoting a local business,’ and ‘donations for new equipment necessary to her citizen journalism efforts.'”
This understanding of “benefit” is broad enough to encompass any journalist who receives any sort of compensation for his work or who hopes to attract readers or viewers. In other words, it is broad enough to encompass any journalist.
That was not the only problem with the legal theory on which Laredo police relied to arrest Villarreal. Section 39.06(d) defines “information that has not been made public
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