On May 22, Prince Lobel filed a friend-of-the-court brief with the U.S. Supreme Court on behalf of the government transparency non-profit MuckRock Foundation. The brief comes in a little-noticed appeal out of Texas, Villarreal v. Alaniz, that could have big implications for freedom of the press, public records law, and the doctrine of qualified immunity.

Priscilla Villarreal publishes news and information on her Facebook page, “Lagordiloca News LaredoTx.” The New York Times has called her “arguably the most influential journalist in Laredo, a border city of 260,000.” Villarreal’s unfiltered approach to her coverage rankles some readers, but it has garnered her more than 200,000 followers.

In the spring of 2017, Villarreal reported that a border patrol agent had committed suicide by jumping off an overpass. She later posted information about a fatal traffic accident and a Houston family hurt in the crash. In both cases, before publicly disclosing the parties involved, Villarreal asked Laredo police officer Barbara Goodman to confirm she had their identities right. Officer Goodman obliged.

Months later, Laredo police officers arrested Villarreal under an obscure Texas statute that makes it a crime to “solicit” nonpublic information from a “public servant” with intent to obtain a “benefit.” The statute defines nonpublic information as information exempt from public disclosure under the Texas Public Information Act, the state’s public records law. The police argued that the identities of the victims were non-public at the time Officer Goodman disclosed them, and therefore Villarreal committed a crime by asking for them.

A state court judge quickly dismissed the charges. Villarreal then sued the officers in federal court for violating her civil rights, arguing that they should have known that arresting her for asking a question violated the First Amendment. The trial court dismissed her claim under the doctrine of “qualified immunity,” which prevents government officers for being sued unless the constitutional right they violated was “clearly established.” A panel of the Court of Appeals for the Fifth Circuit reversed in a two-to-one vote, but that decision was reversed by nine members of the full court over strong dissents from seven of its members.

Villarreal is now asking the Supreme Court to take her case. She argues that she should be able to sue the officers because it was obviously unconstitutional to arrest her merely for asking a police officer to confirm (allegedly) non-public information.

The mission of Prince Lobel client MuckRock Foundation is to help journalists and members of the public to request, share, and understand state and federal public records. In its amicus brief, MuckRock argues that it was unreasonable for the officers to think that Villarreal committed a crime merely because the information she asked Officer Goodman to confirm was subject to an exemption under a public records law. As MuckRock points out, state public records laws often have hundreds of exemptions. Some of these myriad exceptions require the government to balance competing factors – like privacy vs. public interest – in deciding whether to release information. Accordingly, a requester usually cannot know in advance whether the information she requests is public or not. Making it a crime to guess wrong, MuckRock maintains, would greatly discourage members of the public from even asking for government information. Even when an exemption does apply, the government often has the discretion to release the information. It cannot be reasonably thought to be a crime, MuckRock argues, to request information from the government that it may, but need not, disclose.

MuckRock’s amicus brief was written by Jeffrey J. Pyle and Aaron S. Jacobs. You can read it here.

To learn more about Prince Lobel’s Media, Publishing, and First Amendment Law practice, please email Jeffrey Pyle at [email protected].