The Supreme Court’s refusal to stand up for press freedom is catastrophic

In 2017, journalist Priscilla Villarreal did what good journalists ordinarily do. She was working on two stories — one about the suicide of a border agent and the other about a serious car accident. To confirm the names of the people involved in those incidents, Villarreal texted a member of the Laredo Police Department. The officer responded and provided the information she was looking for. 

Balls and Strike editor-in-chief Jay Willis notes, “Priscilla Villarreal probably did not think twice about sending the texts. … After all, Villarreal, a citizen journalist in Laredo, Texas, was just doing one of the more mundane tasks of her job.”

But then someone in the police department got wind of what Villarreal was up to. Soon afterward, she was charged with violating an obscure, Orwellian provision of the Texas Penal Code, the Misuse of Official Information Act. This law makes it a crime “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: (1) the public servant has access to by means of his office or employment; and (2) has not been made public.” 

This law, which was passed in 1993, had never been used before Villarreal was arrested. It had been enacted to stop government officials from trading information for money — not, Willis observes, to muzzle journalists. It is, ironically enough, a law that is supposed to prevent abuses of the public trust, not to encourage them.

Whatever its purpose, the Misuse of Official Information Act cannot be reconciled with the First Amendment’s protection of press freedom. But on March 23, the U.S. Supreme Court let it stand by declining to hear the case.

The court’s refusal to hear Villareal’s case means that reporters can be punished for receiving information from government sources. If that is the new normal in this country, all that will be left for the news media is reliance on press releases. 

This is hardly a conception of the role of the press that the authors of the First Amendment had in mind. As Supreme Court Justice Hugo Black explained more than 50 years ago, “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”

“The government’s power to censor the press,” he continued, “was abolished so that the press would remain forever free to censure the government.”  

When Villarreal’s case first came to court, a trial judge dismissed the charges against her on the grounds that the Misuse of Official Information Act was unconstitutionally vague. But Villarreal didn’t let the matter die. She sued the Laredo law enforcement officials who had been involved in her arrest, claiming that they had violated her First Amendment rights. She further alleged that her arrest was retaliation for her efforts to expose wrongdoing in town government.

As those events make clear, Villarreal is no shrinking violet. Her so-called “news on the move” reporting attracted a large following on her Facebook page, with about 100,000 people. The state contends that her Facebook following constituted the “benefit” referenced in the state law. 

Villarreal’s legal odyssey has been long and complicated. Along the way, the question of whether the Texas law violated freedom of the press was sidetracked by a separate question: whether the police and prosecutor in Laredo could be sued at all. 

They claimed that they could not under the doctrine of qualified immunity. In Villareal’s case, the Fifth Circuit Court of Appeals decided that there was no “clearly established law” that the police violated when they arrested her. The Supreme Court’s refusal to hear the case means her case cannot go forward on whether Texas officials violated the Constitution’s First Amendment.

More damaging is the implication that the First Amendment does not “clearly” protect Villareal.

Justice Sonia Sotomayor called attention to that damage in her dissent from the Supreme Court’s refusal to hear Villarreal’s appeal. “It should be obvious that this arrest violated the First Amendment,” Sotomayor wrote. In her view, Laredo law enforcement had “fair warning that their conduct violated the constitution. … The contours of Villarreal’s First Amendment rights were sufficiently cleared to place the unlawfulness of the officials’ alleged conduct ‘beyond debate.’ … This was a blatant First Amendment violation.”

Sotomayor ended her dissent by noting that “tolerating retaliation against journalists, or efforts to criminalize routine reporting practices, threatens to silence one of the very agencies the framers of our constitution thoughtfully and deliberately selected to improve our society and keep it free. By denying Villarreal’s petition, the court leaves standing a clear attack on the First Amendment’s role protecting our democracy.”

Those words are particularly telling at a time when government officials, whether in Laredo or in Washington, regard the press as the enemy of the people.    

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.