Court Case Could Make It a Crime to Be a Journalist in Texas | Hacker News Reader

Court Case Could Make It a Crime to Be a Journalist in Texas

reason.com

96 pointsdb48x68 comments

The reason piece is good, but it glosses over some of the legal issues here. What is not at doubt is that Villarreal did not commit a crime. The texas law is either unconstitutionally vague, or doesn't apply to the kind of conduct that Villareal engaged in (the texas law actually isn't at issue, since Villareal wasn't indicted). The question is whether the texas law is so unconstitutional, that arresting her for breaking it creates a ground to sue the officers. It's a question of the doctrine of qualified immunity, that police officers cannot be sued under the civil rights act unless they act against settled law. There is no settled law that this kind of arrest is unconstitutional, and so the question is whether it is sort of obviously settled law, an extremely high bar. I don't agree with the doctrine of qualified immunity, but it is the law according to the supreme court, the appeals courts are responsible for applying it.

If that's the actual legal issue, then it's not a good article at all.

If someone's suit is thrown out over qualified immunity, can one sue the federal government over qualified immunity itself as violating their civil rights?

I've tried to comprehend the logic of it, but I gave a very hard time. It's like the judiciary decided there is a set of ways ones civil rights can be violated, and they all were discovered before a specific date.

One important thing to understand is that the US government enjoys absolute immunity from suit under the doctrine of “sovereign immunity”. It may only be sued with its express consent, normally provided by statute. Congress periodically passes laws such as the Federal Tort Claims Act creating categories of offenses that it consents to being sued under.

If you sue the government for something that Congress has not already authorized, standing doesn’t even enter into it.

https://www.law.cornell.edu/wex/sovereign_immunity

Typically (as in the case at issue in this article) government officials are sued in their individual capacity, since suing them in their capacity would immediately fail. In this context they’re just people and do not have sovereign immunity. Instead the Supreme Court created (they might say “recognized” but we should call things what they are) something called “qualified immunity” in 1982 for such cases, subject to certain limits.

Because conservative jurists tend to be pro-law-enforcement the list of things that can defeat a qualified immunity defense has grown smaller and smaller over the years. At some point the Supreme Court ruled that to overcome a qualified immunity defense the violation had to obviously and exactly fall into one of the small number of categories that they had developed from prior cases. That’s where we are now.

(IANAL)

Not directly, but you could appeal on those grounds but the Supreme Court has ruled in the past on Qualified Immunity so you're not likely to get your petition granted.

(You can sue the United States over qualified immunity generally, but you'll be found not to have standing, and your suit will be dismissed put of hand)

Just a clarification: it is not "the law according to the supreme court" because there is no law about it; it is something SCOTUS invented about 40 years ago out of thin air.

I mean, if the Supreme Court says it's the law, then by definition it's "the law according to the Supreme Court". Likewise, if my friend Doug says that speeding is fine because he's a sovereign citizen, then that's by definition "the law according to Doug".

The difference here is that we determined a few centuries ago that the Supreme Court's interpretation is the one that counts, so we abide by that interpretation when trying to figure out what laws mean.

A clarification: "the law according to the supreme court" is whatever they say it is. If others disagree, (a) they can convince legislators to impeach SC justices, (b) they can try to pass an amendment overturning th SC decision, or (c) elect a president who will nominate justices likely to overturn that decision.

All these, plus in cases where the Supreme Court decisions pertain to a specific law (as opposed to constitutional interpretation or the like), there's also the much lower buy-in option of repealing a given law and passing a more clearly worded and less open-for-interpretation version of said law.

Very interesting... do you know any blogs where these legal issues are discussed?

I found the case itself

https://law.justia.com/cases/federal/appellate-courts/ca5/20...

I thought this was going to be a clickbait headline blown way out of proportion. But looking at the details:

> In April 2017, Villarreal, who reports near the U.S.-Mexico border, broke a story about a Border Patrol agent who committed suicide. A month later, she released the surname of a family involved in a fatal car accident. The agency that confirmed both pieces of information: the Laredo Police Department. The agency that would bring felony charges against her six months later for those acts of journalism: the Laredo Police Department.

> At the core of Villarreal's misfortune is a Texas law that allows the state to prosecute someone who obtains nonpublic information from a government official if he or she does so "with intent to obtain a benefit." Villarreal operates her popular news-sharing operation on Facebook, where her page, Lagordiloca News, has amassed 200,000 followers as of this writing.

> So to jail Villarreal, police alleged that she ran afoul of that law when she retrieved information from Laredo Police Department Officer Barbara Goodman and proceeded to publish those two aforementioned stories, because she potentially benefited by gaining more Facebook followers.

The article is misleading, though. The case against Villarreal was quickly thrown out because she was clearly within her constitutional rights to do what she did. No one is arguing against that. There is no chance she goes to prison or is convicted for that.

The issue is that she is trying to sue the officers for arresting her at all. Her argument is that the officers should have clearly known she had a constitutional right to do what she did, and arresting her for it is a violation of those rights. The courts have ruled previously that the officers can be sued if the thing they are arresting her for is “clearly settled” as being legally protected. If it isn’t, then the officers have immunity to being sued because they were acting on a law they believed to be legal.

The question is whether her situation should have fallen under “clearly settled” law or not. I personally believe this situation seems like it is clearly settled enough to not grant the officers immunity, but it isn’t quite as legally clear as whether Villarreal was constitutionally protected (which i know sounds like a contradiction… how can it be clear she is protected but not clear the law was settled? The question is around the level of ‘settled’ that is required for each determination, I believe)

Any journalist is obtaining a benefit from publishing articles, they are paid for it. That means any whistleblower information that is published by a journalist is sending the journalist to prison, according to that law. That is BAD.

The Texas attorney general is facing whistleblower lawsuits, so I don't think Texas cares much about protecting whistleblowers. I say this as someone who lives in Texas.

I could go on and on about Ken Paxton, but don't want to go too far off topic.

The law itself as enforced in this case is clearly illegal, and no one is arguing against that.. Villarreal was not convicted. The question is whether she can sue the officers for even arresting her at all.

The same state that will argue that companies like Facebook need regulations because they are not beneficial to society, is now going to try to argue that they are beneficial?

The more I read about qualified immunity stories, the more I feel like it is demonstrating that the Constitution is a far weaker legal backstop than the zealous patriotism about it would lead you to believe.

Because in between a government sanctioned wrongdoing and a ruling of “that was unconstitutional” someone is irreparably harmed. And with QI there’s no feedback loop to discourage it from happening again.

Not that the Constitution doesn’t have effects. Obviously it does. But it isn’t this magical aegis… at least not if you’re not rich.

The rather absolute & uncritical application of qualified immunity does seem like a persistent problem, but that's an issue of implementation, not of the original design document.

The Constitution is only strong if the implementation holds it to be.

The Constitution was meant to give people rights and protections and it was clear in many places "should not infringe". Then people of all political colors started to walk the slippery slope of "we don not infringe, we regulate", eating away the Constitution meaning. Most US citizens that I know (only a few hundreds, but that gives a reasonable sample size) agree with most of these "regulations", about half of them even want to remove parts of the rights in the Constitution, so the protection that it provides is eroding every single day. Put on top of that invented concepts that don't exist in any law like qualified immunity and you are half on that slippery slope, building speed downwards.

For a long time I had an envy for US to have so clear rights by their Constitution. Boy, I was naive to believe they still exist. Context info: I was born and lived in Communist Eastern Europe, in my country there is practically no right by Constitution but to pay taxes.

The document itself is useless unless there is a mechanism to enforce laws which encroach upon it’s central tenets. We have that, the judiciary, but on the whole they completely abdicate their responsibility to strike down affronting laws.

The problem is that the judiciary is a timid institution by nature, because the Constitution actually says very little about it. All the courts lower than the Supreme Court are established by Congress in federal law versus the Constitution, and most of the Supreme Court's powers are implied and not explicitly defined in the Constitution, like their power to do judicial review for constitutionality. Even what is said about the Supreme Court is very vague; what it actually looks like is also at the discretion of Congress.

Given that they derive most of their power from Congress's discretion, and on top of that are not elected officials, they use their power sparingly, because it is supposed to be Congress's job to legislate.

It's worth noting that the constitution itself doesn't provide that mechanism - the judiciary created it for itself, but relies on the cooperation of the other branches for its judgments to be effective.

Agreed on that, but I think it was the very first case before the supreme court in which they declared their central role to be to decide "what the law is" or some similar statement. Even though it's not constitutionally defined, like all old, atrophying organizations, inertia basically guarantees survival.

The Texas court system seems corrupt beyond belief. Same state that just blocked federal student loan debt relief on what appears to be a strictly partisan basis rather than legitimate legal finding.

The Spending Clause pretty clearly says that Congress, not the President, gets to spend the government's money. Forgiving a debt for previously paid money is not exactly the same as spending new money, but it seems pretty close.

Contrast that with, for example, abortion. Was Roe a "legitimate legal finding" to you? Show me where in the Constitution it says there's a right to that?

There's definitely Supreme Court decisions where conservatives act on a partisan basis rather than based on legal reasoning. Gonzales v. Raich, the homegrown cannabis case, is a good example. But it's quite bizarre to criticize conservative judges for being "partisan" when liberals don't even try to hide the fact that they read the Constitution according to "how they want it to be."

And congress delegated their power over spending related to student loan debt to the executive branch via the heroes act. Much like congress many narrowly defined aspects of their power to the executive in general or to specific offices of the executive.

Declaring that congress can’t delegate their power is a new legal theory that is currently being used by one side which is why it’s being called partisan

Congress can’t delegate it’s power: https://www.law.cornell.edu/wex/nondelegation_doctrine

Congress can allocate a block of money and give the President the executive function of deciding the details of how to spend it, but it didn’t do that here.

> Congress can’t delegate it’s power:

Then you should tell Justice Gorsuch (joined by Alito, and Thomas) that he was wasting his time when he raised the nondelegation doctrine in his concurrence in striking down the OSHA vaccine mandate. [0]

[0] https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf#...

I don't know why this was flagged, but I vouched it. I don't agree with it (at least not the thrust of it; I do think the courts are on pretty firm footing shooting down Biden's student debt relief), but it's in line with the thread, which is on topic for the story.

>Show me where in the Constitution it says there's a right to that?

The entire government operates on the principle that there's implied rights in order to make the system actually work.

There's no power to classify information in the constitution. It's implied by the fact that the country has to be able to operate a military.

The 1st amendment doesn't say anything about money. But it's been decided that money is speech.

We could go on and on.

It was never decided that “money is speech”; that’s just the kind of oversimplification that people use to rile you up. What was decided was that _spending_ money _can_ be speech. For example, if you spend money on a hot dog then that probably wasn’t an act of speech covered by the first amendment, but if you spend it on a television commercial then it probably was.

Legal reasoning moves from strict reading to reading of intent fluidly. It's not very different from this "seems pretty close" in one case vs exact text in the other.

Where is the Supreme Court's right of judicial review defined in the Constitution?

I'll save you the trouble - it isn't. The court just made it up.

This is a popular fringe argument that is flimsy enough to be practically disqualifying. Judicial review was established in the time of the framers, smack in the middle of the presidency of Thomas Jefferson, and is discussed in the Federalist Papers. It's as solid a component of the American system as anything else is.

I don't know about "disqualifying" but it does dredge up a pretty old Federalist/Anti-Federalist beef: https://en.wikipedia.org/wiki/Federalist_No._78.

... aligning with the Anti-Federalists more or less confirms that you're operating in an alternative universe, doesn't it? Not that they're wrong, but they're the opponents of the Constitution.

Please, please stop dragging abortion into threads on HN. If you want to talk about it so badly, there are other places where it is on topic.

I’m not talking about abortion. I’m talking about a mode of legal interpretation of which the abortion precedent is the clearest example. That’s clearly on topic in a thread about legal interpretation.

It might, or might not, be on topic in this particular thread but it surely does have a place on HN.

Partisan basis is becoming "what the other side of the aisle" disagrees/agrees with.

What was your actual issue with the judge's ruling?

The argument was that someone who took out private loans was denied benefits that were given to those who took out government loans. The judge completely ignored issues of whether the plaintiff had standing to sue, which they clearly did not. The plaintiff did receive over $40k in forgiven PPP loans for their business, which just adds to the hypocrisy.

Texas AG suing other states on a flatly unconstitutional legal theory in order to try and stop the peaceful transition of power from the Trump to Biden admins

It's that pesky Constitution again. The court ruled that Biden can't just spend that kind of money on his own executive order; Congress has to do it. And, you know, reading the Constitution sure makes it look like the court is right on this one.

> The court ruled that Biden can't

I think you should read about the case, which you haven't. The ruling was over someone who wanted in on the forgiveness, not challenging the ability to prescribe it.

Laws do not solely reside in the Constitution, even after including Congressional bills. In the USA, laws are only one class of rules that people are subject to. POTUS oversees (directs execution) of various agencies that have their own rules and regulations. These are also, ultimately, controlled by Congress as fast as bills can be passed (which isn't very fast) making POTUS the de-facto controller of the vast majority of actions these agencies take (usually, by proxy). To say it's unconstitutional, requires that any Presidential action to affect regulation must be approved by Congress. Congress can craft a bill to override it. Unconstitutional usually means that it affects the rights of individuals unduly. This is not the case.

Yeah, thanks for assuming the best about me.

Your last paragraph has lots of words, but completely misses the point. The ruling said that the President can't spend the money without Congressional authorization. That is what makes it unconstitutional - the President can't spend money by executive order unless it's previously authorized.

> but completely misses the point.

It does not. You think the point is to reiterate what's already been said.

> The ruling said that the President can't spend the money without Congressional authorization.

The ruling is an interpretation that makes no sense on its face, which is not unusual for many courts.

The President isn't spending money. He doesn't literally write a check. Direction (executive branch) has costs associated with actions. He certainly can direct from a written order.

The line of thinking from the ruling is paradoxical. If congress was required to have an audit of the costs for any action POTUS (or any part of the executive) took, that would incur a cost, effectively removing the power of the Executive and miring the process in recursion hell without recourse.

Currently, the legislative still has recourse, but the ruling directly mentions that the ruling is a critique about Constitutionality being breached between the branches without any relation to the case at hand. Note the ruling, in effect, was against the plaintiffs who were funded by people interested in challenging the law.

All parties, being politically motivated, is what makes it a political ruling, which is not unusual, despite the reasoning.

I would love to see a legal analysis of this: https://crsreports.congress.gov/product/pdf/LSB/LSB10818#pag...

It's weird how the court is always correct in its reading of the Constitution when its interpretation favors the ideology one party, and always wrong when it favors the other.

Is Congress not allowed to delegate out their power over specific issues?

The line item veto was ruled unconstitutional -- congress passed a law to allow the president to veto portions of spending bills but not the entire bill. This was ostensibly done to reduce "pork" spending stuffed into bills.

So this is an example of congress trying to delegate a specific, narrow power, but the court basically said "If you want to change separation of powers, then this requires a constitutional amendment. Separation of powers can't be reduced due to one branch voluntarily delegating power to another"

https://en.wikipedia.org/wiki/Line_Item_Veto_Act_of_1996

I disagree on that power being "narrow". Being able to veto individual portions of all spending bills in the future (until/unless the Act is repealed) is a pretty broad power as I see it. "Narrow" would have been something like "this bill authorizes spending $X on Y", leaving the executive branch to decide which of those specific authorizations to take advantage of in that specific Act.

> "Narrow" would have been something like "this bill authorizes spending $X on Y", leaving the executive branch to decide which of those specific authorizations to take advantage of in that specific Act.

What you describe is how things are generally done, and there is no legal issue here, nor would it be challenged in court.

If you are referring to executive order on student loans, then IIRC, some amounts were authorized for student debt forgiveness, but they were not in the same timezone as what the executive order was trying to spend (which was $430 Billion). I know this is an emotional issue for many people and hits their personal finances, but that's a lot of money to spend by executive order. One can even say that the fact that so many people would have their finances improved by this EO is kinda proof that it involves spending a lot of money, it's more than the budgets of the US Airforce and the US Navy added together.

I'm confused. If generally the spending is just an authorization and not mandatory, then what would be the point of a line item veto on that spending? Couldn't the executive avoid that expenditure regardless?

(I'm not asking about the student debt issue - I'm asking about https://en.wikipedia.org/wiki/Line_Item_Veto_Act_of_1996)

The President is not a dictator of the executive branch, he is there to execute the law, not set policy that contradicts congressional authorizations, so there are limits on what an EO can do.

* First, many agencies are (by law) independent. https://en.wikipedia.org/wiki/Independent_agencies_of_the_Un... This is now a huge fight, as the administration is trying to also direct independent agencies. See https://www.americanactionforum.org/insight/competition-eo-f...

* Second, if the money is given to the states as a grant, there isn't much the Federal government can do to restrict the funds. There were attempts, for example by the Trump administration to withhold money to states that don't cooperate with INS, but those were struck down. There were also attempts by the Biden administration to deprioritize farm aid to white farmers, but these were also struck down.

* Third, as the job of the President is to carry out the law rather than set his own policy, if the EO appears to contradict the founding charter of the agency or specific legislation passed by congress, then it can also be struck down. The role of the president in setting policy should be limited to signing or vetoing legislation, not trying to tip a federal agency to go one way or another. Of course no President honors this ideal, they are always trying to affect policy, and the courts are constantly striking down EOs that go too far in that direction.

As to pork barrel spending, it's generally money given to states, negotiated by congressmen. It's really hard to stop that kind of spending via executive order. Some of it you can, most you can't. One of the litigants of the line item veto was Robert Byrd, famous for successfully routing huge quantities of pork to Virginia, primarily by relocating every federal office to Virginia, and funding lots of programs for virginia schools, parks, etc.

Here are some examples:

* Bill to move FBI headquarters to Virginia, building a new office there -- spend up to $X (How will you stop the spending with an EO? Move the headquarters but only build half of the new HQ? The FBI will not like this)

* Bill to build a new post office in Virginia, spend up to $X (USPS is supposed to be independent, so hard to block with an EO)

* Bill to create a cancer research fund to be given to some Virginia university, that can spend up to $X. Again, you are going to tell the grant review board to turn down all those proposals? That's hard to do, especially if the review board works for an independent agency.

But here is stuff that you could do more easily with an EO

* Bill to provide up to $X in hurricane relief to qualified home owners. Now maybe you don't spend the full $X. You can set the requirement to screen applicants to be stricter as FEMA is not an independent agency (it used to be, but now under DHS). You have to be careful how you word the EO, but you could get away with spending less.

So while there are things the President can do to spend less, it's often quite difficult to do once the legislation is passed.

Maybe they are. Did they? Did Congress pass something saying that the President can forgive student loans at his discretion? More to the point, did Congress say that the President can spend the money to do so?

Satisfying any intent is a "benefit", simply feeling better or feeling satisfied is a benefit. It's another perspective or way to look at "having motive" or "having a reason". At the same time, the intent seems to be to make corruption a problem, without getting into the impossible enumeration of all of the payoffs. And if you find out by accident, not by your own agency, let you off the hook.

Interesting that social media clout is now a currency in the eyes of the courts.

The 5th circuit is also the court that upheld Texas's recent "social media" law [1]. That's the one that makes it illegal for private companies to do content moderation on their private platforms. I doubt that's a coincidence.

[1] https://www.politico.com/news/2022/09/16/5th-circuit-upholds...

I thought there was just a SCOTUS case heard in the last week about a similar issue, whether police departments can assert qualified immunity when arresting/jailing someone for something that is free speech-related?

If I understand the article correctly, there are levels to this situation which make the "crime to be a journalist" situation a little complex, and worth unpacking.

It doesn't sound as if the Texas law under which Villarreal was initially charged can be used any longer, so the "crime to be a journalist" claim isn't that a journalist has or can be convicted under this particular law.

Rather, the contention is over whether the police have qualified immunity, and whether a civil case can be brought against them, which hinges on whether violations of ones rights are clearly established by case law. The "crime to be journalist" claim applies in the lesser sense that cops can investigate, charge, detain, harass a journalist with no consequences.

> The charges were eventually dismissed as baseless and the law ruled unconstitutionally vague. But those officers were given qualified immunity for violating her First Amendment, Fourth Amendment, and 14th Amendment rights when they arrested and detained her, thus preventing her from holding them accountable in civil court.

https://reason.com/2021/11/03/cops-arrested-her-for-exercisi...

But, bearing in mind that these judges have been speaking about whether the Laredo police have qualified immunity concerning their 2017 actions, I think the key question is what is the future impact of the Texas law having been found unconstitutional -- in particular does it change what constitutes a clearly established violation? I.e. even if Villarreal cannot sue the Laredo police for their actions in 2017, in 2022 when police know this statute is bad, can they still investigate/charge journalists with impunity?

those officers were given qualified immunity for violating her First Amendment, Fourth Amendment, and 14th Amendment rights when they arrested and detained her, thus preventing her from holding them accountable in civil court.

In the doctrine of qualified immunity, this means she must go after the state for these violations of her rights?

I honestly think we should just let conservative states devolve into hellscapes of tyrrany. We need conservatives to admit how shitty they are making their own lives and take some responsibility for the democracy and freedom they pay lip service to.

Whenever I start thinking like this about my home state (yep, Texas), I remember all the people who can't leave, mostly due to finances, some due to family, and some like a close friend with severe muscular dystrophy for whom a trip more than 20 minutes or so would require an ambulance. I don't think she's ever left the state, and I know she hasn't left the county in the past decade. Dumb luck happened to have her house on one of the few circuits in town that didn't lose power for days during the 2021 winter storm. We did a fund raiser to add a generator and other renovations (no-so-fun fact: Texas Medicaid recipients can't have more than $2000 in liquid assets)

This friend campaigned as hard as she could for O'Rourke, because she has a much more optimistic view of human nature and our fellow Texans than I do, and really wanted Texas to take the mostly-federally-funded Medicaid expansion. Always remember: over 40% of Texas voters consistently do want better for themselves and their state, and it's similar across the country.

It's the classic Mississippi problem. It turns out you can actually make life hard for a subsector of the population while keeping life good for yourself.

In some sense, if we have to spend to liberate Kherson, perhaps we have to spend to liberate Mississippi.

So, maybe border control around them and visas too?

Sure would be interesting.

If you think that there is a problem you want to fix, at least try to avoid proposing unconstitutional "fixes".

I'm willing to let it ride for them, since they hold the Constitution in contempt and are actively withering it away.

I mean, if you want some states to behave like completely different countries with laws and governance model radically different from what the rest of the states have, you could just as well drop all the pretense and introduce their own borders, own army, and so on. (shrug) This is what my comment has been about.

It could be an interesting thought experiment.

Unfortunately, the political structure of the US is designed to cater to conservative states and their agenda. Which means they'll just drag the rest of the country into the hellscape with them.

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