The Supreme Court declined Monday to hear a case testing a Texas law allowing law enforcement to arrest reporters who obtain information from government employees.
Justice Sonia Sotomayor dissented from the decision not to hear the case.
"This case implicates one of the most basic journalistic practices of them all: asking sources within the government for information. Each day, countless journalists follow this
practice, seeking comment, confirmation, or even 'scoops' from governmental sources," she wrote. "Reasonably so."
In 2017, Laredo, Texas, journalist Priscilla Villarreal, also known as "LaGordiLoca." was arrested for publishing news stories about a border agent's public suicide and a car crash. She was arrested because she fact-checked her stories with information voluntarily provided by a police officer.
"This was a blatant First Amendment violation," Sotomayor wrote in her dissent. "No reasonable officer would have thought that he could have arrested Villarreal, consistent with the Constitution, for asking the questions she asked. Such an arrest is plainly inconsistent with basic First Amendment principles."
The Texas law had never been enforced before Villarreal's case. The law makes it a felony to solicit from public officials information that has not previously been publicly disclosed.
After a Texas court judge held that the statute was unconstitutionally vague, Villarreal sued both the prosecutors and police officers responsible for her arrest. When law enforcement officers appealed, a panel of three Fifth Circuit federal appeals court judges ruled for Villarreal, asserting that: "If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it's hard to imagine what would be."
But the full Fifth Circuit subsequently held 9-7 that the officials have qualified immunity for arresting Villarreal since she did speak to a government official and benefited through "minor advertising revenue" and "free meals from appreciative readers." More importantly, the full court concluded that the officials are entitled to qualified immunity from being sued because they could have reasonably thought they were just enforcing the law.
The Supreme Court first weighed in on Villarreal's case last year when it ordered the Fifth Circuit to reconsider the case in light of other cases which support Villarreal's position.
But the Fifth Circuit, widely viewed as the most conservative federal appeals court in the country, again ruled against Villarreal.
Monday's U.S. Supreme Court action means that judgment will remain in place.
"The Court's intervention is warranted because the Fifth Circuit's position undermines important bedrock constitutional protections," Sotomayor wrote in her dissent. "Under its view, police officers may arrest journalists for core First Amendment activity so long as they can point to a statute that the activity violated and that no high state court had previously invalidated, whether facially or as applied. This rule creates a perverse scheme in which officials can arrest someone for protected activity, decline to appeal a trial court's decision declaring the statute unconstitutional (as the county did here), and use qualified immunity to avoid liability by citing back to that statute."
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