In some instances, whether you are able to exercise your First Amendment rights in a free and unrestricted manner depends on your location.
One example is that of Priscilla Villerreal in Laredo Texas. She was arrested in 2017. Her stories were about a suicide attempt by a U.S Border Patrol agent and one that revealed the identity of a victim in a car accident that killed their family.
Villarreal is no stranger to sharing sensitive information on Facebook, where she has over 195,000 followers. Nor was she cozy with local law enforcement, having cultivated a reputation as a citizen journalist who focuses on police misconduct and the justice system in videos she posts online infused with colorful commentary. One time, she live-streamed the video of an officer inflicting pain on a person during a traffic stop. She drew the attention of a district Attorney after publicly criticizing him for dropping an animal abuse case warrant.
But Villarreal found herself in a jail cell after breaking those two relatively benign stories concerning deaths in the community, charged with two third-degree felony counts of “misuse of official information” under Texas Penal Code § 39.06(c). That she asked for and obtained the information in typical journalistic fashion—from the Laredo Police Department (LPD) itself—didn’t matter to the cops, who zeroed in on Villarreal as the first person they would ever seek to prosecute under that Texas statute.
The charges were finally dropped as they were unfounded and the law declared inconstitutionally vague. However, the officers received qualified immunity because they violated her First Amendment, Fourth Amendment and 14th Amendment rights by arresting and detaining her. This prevented her from holding them responsible in civil courts. If the exact manner in which they violated your rights is not clearly established by courts, qualified immunity allows public officials to avoid civil suit.
The U.S. Court of Appeals, 5th Circuit, Monday, rejected Villarreal’s argument. It removed qualified immunity from Villarreal’s cops and allowed Villarreal to present her case to a jury.
“This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment,” wrote Judge James C. Ho. If the First Amendment guarantees freedom of speech, it also gives the ability to curse at public officials. It is likely that the First Amendment allows for polite questions. Villarreal requested the same questions from Barbara Goodman (LPD Officer), who provided that information to Villarreal at her discretion.
Villarreal’s wrongful arrest case was also supported by the 5th Circuit. Villarreal claimed that her cops had violated the Equal Protection Clause in order to discriminately enforce the law.
It is important to note many aspects of the decision. Ho’s opposition to qualified immunity is well-known. Ho had stated previously that the protections granted police officers by the court were necessary “to stop mass killings.” So it’s significant that Ho emphasized that the 5th Circuit need not find a nearly indistinguishable precedent in order to show that the constitutional right at issue was “clearly established”—which is often the defining element of a qualified immunity case, and the reason why the doctrine has greenlit so much egregious government misconduct, like stealing, assault, and property damage.
His position is supported Ho mentioned the Supreme Court’s 2020 ruling in Taylor v. Riojas,This case involved a group prison guards that had originally been granted qualified immunity for forcing an inmate to sleep naked in two filthy cells. Supreme Court reversed that decision and rejected the claim that the victim cannot sue, simply because he couldn’t find any ruling matching his own experience.
Ho also said it’s unnecessary: A constitutional violation is justified ThisIt is absurdly obvious.
Jaba Tatsuashvili (an attorney at the Institute for Justice), a public-interest law firm, stated that the decision “crucially” also states that officers cannot hide behind clearly unconstitutional statutes. AmicusSupport Villarreal in a brief statement. “In other words…’we were just enforcing the law’ is not a categorical defense against a civil lawsuit for violating” a constitutional right.
Ironically, Monday’s 5th Circuit decision coincided with the Supreme Court refusing to hear Frasier v. EvansA case where a group Denver officers were granted qualified immunity following a warrantless search on a tablet by a man to remove a video of officers beating an suspect in an arrest related to a drug deal.
To put it bluntly, where you live and the federal circuit court to which you belong will determine how your First Amendment rights are protected. Each of the 11th, 13th, 15th, 7th and 9th Circuits confirmed something that was obvious: The government cannot take revenge on you because they filmed police on duty. That is an instrument used to hold them accountable. In some places, however, they can indeed retaliate and evade accountability for that, too—just as Villarreal almost missed her opportunity to do so, had the 5th Circuit not overturned the lower court’s decision.
Tsitsuashvili explains that it creates territorially arbitrary vindications of rights. If you live in one state, you might be able, or at least be eligible to, vindicate a Constitutional right. But, if your state sits in a different court circuit, there is no recourse.