Justice Sotomayor on the Freedom of the Press and the Right to Ask Questions

To defeat a claim of qualified immunity, an individual must show that an official violated her constitutional rights, and that the official had “fair warning that their conduct violated the Constitution.” Although “there does not have to be ‘a case directly on point'” for this fair-notice requirement to be satisfied, “existing precedent must place the lawfulness of the particular [conduct] ‘beyond debate.'” …

The adverse action taken against Villarreal is an example of an “‘obvious case.'” … The First Amendment protects the “right of citizens to inquire, to hear, to speak, and to use information.” It also protects a free press, “bar[ring] [the] government from interfering in any way with” its function. This encompasses safeguarding “routine newspaper reporting techniques.” Indeed, “without some protection for seeking out the news, freedom of the press could be eviscerated.”

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. Reasonably so. “A free press cannot be made to rely solely upon the sufferance of government to supply it with information.”

{That is not to say that the government cannot impose limits on news-gathering. As the Court has explained, journalists have a right to “seek news from any source by means within the law.” The First Amendment, however, necessarily places limits on how far States can go in deeming certain practices unlawful. This case presents no occasion to consider where that line may fall, given that under any conception, asking a public official for nonpublic information as part of the journalist’s verification efforts (with no allegations of force, coercion, deception, or bribery, or suggestions that the journalist knew the information was protected from disclosure, see App. 242a) would fall outside of what could be criminalized consistent with the Constitution.}

Guided by these principles, journalists are “free to seek out sources of information not available to members of the general public.” … If … an official voluntarily chooses to convey information, three things are clear. First, only in the rarest of circumstances can the government prevent or punish the information’s publication. Second, the government is free to discipline the official, the very person it hired, trained, and supervised in the handling of confidential information. Third, the government certainly cannot punish the journalist simply for making the request.

Villarreal followed this core journalistic practice here. She asked a source within the local police department about two incidents that occurred within her community. The source could have refused to answer Villarreal’s questions. Instead, the source voluntarily gave Villarreal the information she sought, and Villarreal later published it. What happened next flies in the face of the core guarantee of the First Amendment: By arresting Villarreal, rather than solely disciplining the employee for any wrongdoing, county officials took this “everyday journalism” and transformed it “into a crime.”

This was a blatant First Amendment violation. No reasonable officer would have thought that he could have arrested Villarreal, consistent with the Constitution, for asking the questions she asked…. [A]lthough there is not a direct, factually analogous precedent confronting this situation, that is unsurprising and, more importantly, irrelevant given just how “‘obvious[ly]'” unconstitutional the officials’ conduct here was….

Despite all of this, the Fifth Circuit held that the arrest was lawful. Primarily, the court reasoned that because Villarreal alleged that the officials violated her First Amendment rights by arresting her, she had to prove a Fourth Amendment violation too, which, in its view, she failed to do. { The Fifth Circuit at times appeared to disparage Villarreal, describing her reporting as “capitaliz[ing] on others’ tragedies to propel her reputation and career” and admonishing attempts to “portray her as a martyr for the sake of journalism.” The First Amendment does not protect only those journalists whose work is deemed valuable by judges; rather, it “‘shields [all] who wan[t] to speak or publish when others wish [them] to be quiet.'”} Even assuming such an inquiry is relevant, the Fifth Circuit’s analysis does not withstand scrutiny.

First, the Fifth Circuit found that the officials reasonably believed that they had probable cause to arrest Villarreal for violating § 39.06(c). Not so. Just like an individual cannot be convicted of a crime for engaging in First Amendment activity, it is axiomatic that a probable-cause determination cannot be based on such protected activity either….

Second, the Fifth Circuit found that even if probable cause was lacking, the officials’ actions were still reasonable under the Fourth Amendment. That is because the officials had acted pursuant to a state statute, and, according to the court, given that no “final decision of a state court” had found that statute unconstitutional before Villarreal’s arrest, the officials could have reasonably relied on the statute here. In other words, in the court’s view, the officials committed a reasonable mistake of law by presuming that § 39.06(c) was constitutional and enforcing it against Villarreal.

The presence of the state statute, however, does not and cannot insulate the officials from liability…. [I]t is … unreasonable to “enforc[e] a statute in an obviously unconstitutional way.” Here, it is hard to conceive of a more obvious constitutional violation than arresting a journalist who, in searching for corroboration, simply asks a government source for information. That is the essence of many journalists’ jobs. The arrest does not somehow become reasonable, and constitutional, merely because an unconstitutional application of a statute authorizes it.

Finally, the Fifth Circuit held that the officials were shielded from liability because the Magistrate Judge had issued the warrants for Villarreal’s arrest. The independent-intermediary doctrine does not save the officials here. “[T]he fact that a neutral magistrate [judge] has issued a warrant authorizing the allegedly unconstitutional” arrest “does not end the inquiry into objective reasonableness.” Rather, an official can still be held liable “when ‘it is obvious that no reasonably competent officer would have concluded that a warrant should issue.'”This standard is satisfied in this case because the arrest was obviously unconstitutional for the reasons explained above. Even putting that aside, the officers here never told the Magistrate Judge how or why the information was protected from disclosure under Texas law, and there are good reasons to believe that it was not….

[T]he Fifth Circuit’s position undermines important bedrock constitutional protections. 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. The Court’s decision today prevents adjudication of whether this statute is constitutional and the extent to which this journalist’s activities are protected. The Court thus allows this pattern to repeat.

The Fifth Circuit’s opinion illustrates the implications. The court criticized Villarreal for asking her questions to a “backchannel[ed]” source, as opposed to following official channels to receive her information. This appears to suggest that had Villarreal directed her questions to a public relations official for the department, for example, she would have fallen outside the scope of § 39.06(c). On the face of the statute alone, it is not clear why. The statute does not draw a distinction between the kinds of “public servant[s]” from which a person “solicits” nonpublic information.

As a result, it arguably could be leveraged to reach the mundane act of asking questions to officials at press conferences, or at crime scenes, when the reporter intends to “benefit” by publishing any answer, even if she does not receive one. Under the Fifth Circuit’s rule, however, no individual arrested in any of these circumstances would have recourse. Because of the Court’s inaction today, neither does Villarreal….

Below, Villarreal also claimed that the arrest violated her First Amendment rights in yet another way. Given the alleged history between Villarreal and local officials, she said that she was arrested as retaliation for her prior reporting. [For more on this, see the opinion. -EV] …

The First Amendment prohibits “abridging the freedom … of the press.” In our constitutional order, “the press serves and was designed to serve as a powerful antidote to any abuses of power by government officials.” 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.” …