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EDITORIAL: Court to decide if journalism is protected by the First Amendment

Citizens have a constitutional right to publish information received from public officials without fear of harassment, prosecution or arrest. That shouldn’t be controversial, yet it isn’t clear how a circuit court will rule in a case hinging on this issue.

On Wednesday, the 5th U.S. Circuit Court of Appeals heard a case involving online citizen journalist Priscilla Villarreal, who was arrested in 2017 after publishing two stories. The first was about a Border Patrol agent who died by suicide. The second revealed the identity of a family involved in a deadly vehicle accident. They ran on her Facebook page, which now has more than 200,000 followers.

That’s called journalism. It shouldn’t be a crime, even if the writer isn’t popular with the local police department. Ms. Villarreal certainly wasn’t. She previously lambasted a local prosecutor and once livestreamed a Laredo Police Department officer choking someone during a traffic stop.

Perhaps that’s why Laredo police charged her based on a Texas law that prohibits someone from receiving “nonpublic information” from the government with the “intent to benefit.” It is possible to imagine a scenario where that type of law is appropriate. Imagine a developer obtains inside information on a zoning decision that allows him to profitably purchase or sell land.

But to apply this law to reporters is to all but outlaw news gathering. Journalists make records requests. They talk with sources. They interview government officials. They use this to create articles or videos that they use for “benefits” such as subscriptions or social media followers.

Ms. Villarreal’s supposed crime was receiving information from the very police department that eventually arrested her. Her supposed benefit was an increase in Facebook followers and the occasional free lunch.

She eventually sued the police for arresting her. A District Court judge in Texas, however, gave the police qualified immunity. In a split decision, a group of three judges on the 5th Circuit reversed that decision. But then a majority of the court voted to rehear the case en banc.

The injustice has attracted an unusual collection of organizations supporting Ms. Villarreal, who leans left. It includes traditionally libertarian or right-leaning groups such as Project Veritas, Americans for Prosperity, the Cato Institute and the Alliance for Defending Freedom.

“Defendants’ harassment of Ms. Villarreal, efforts to bar her from seeking nonpublic information from officials, and better treatment of the general public makes the First Amendment violation plain,” ADF attorneys Rory Gray and John Bursch wrote in an amicus brief.

The court must rule in favor of Ms. Villarreal. The Bill of Rights demands no less.

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