The 5th Circuit Says Criminalizing Journalism Is Not Obviously Unconstitutional

Published

10 months ago

February 1, 2024

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Five years ago, the Harris County, Texas, Institute of Forensic Sciences sent me reports on the autopsies of two people who had been killed in a Houston drug raid. After I wrote an article based on those reports, the county attorney’s office told me they were not public information because they were part of an ongoing investigation.

Although I did not realize it at the time, I had committed a felony just by asking for that information. You might think a law that criminalizes journalism is obviously unconstitutional. But if so, you are wrong, according to a decision that the U.S. Court of Appeals for the 5th Circuit issued last week.

The case involves Priscilla Villarreal, a Laredo gadfly and DIY journalist who was arrested in 2017 for violating Section 39.06(c) of the Texas Penal Code. Under that law, a person who “solicits or receives” information that “has not been made public” from a government official “with intent to obtain a benefit” commits a third-degree felony, punishable by two to 10 years in prison.

Villarreal allegedly did that by asking Laredo police officer Barbara Goodman about a suicide and a fatal car crash. Goodman confirmed the name and job of a U.S. Border Patrol employee who had jumped off a Laredo overpass and the last name of an accident victim. Villarreal included that information in reports on her locally popular Facebook page.

Texas defines “benefit” as “anything reasonably regarded as economic gain or advantage.” According to the arrest affidavits, the “benefit” that Villarreal sought was a boost in Facebook traffic.

Section 39.06(c) defines “information that has not been made public” as “any information to which the public does not generally have access” that is also “prohibited from disclosure” under the Texas Public Information Act. The arrest affidavits did not address the latter requirement at all.

Although this law has been on the books for more than two decades, no one has ever been convicted under it. Nor had Laredo police ever charged anyone with violating it.

After a Texas judge blocked Villarreal’s prosecution, deeming the statute unconstitutionally vague, she filed a federal lawsuit against the officers who were involved in her arrest, arguing that they targeted her because they were irked by her vocal criticism of local law enforcement agencies. She noted that several cops had mocked her after the arrest, laughing while snapping pictures with their cellphones.

A federal judge dismissed Villarreal’s lawsuit after concluding that the officers were protected by qualified immunity, which allows federal civil rights claims only when they allege misconduct that violated “clearly established” law. A 5th Circuit panel overruled that decision in 2021.

“Priscilla Villarreal was put in jail for asking a police officer a question,” Judge James Ho wrote. “If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.”

After rehearing the case, nine of Ho’s colleagues disagreed, ruling that the officers had probable cause to arrest Villarreal and that the law was not so blatantly unconstitutional that they should have recognized it was inconsistent with the First Amendment. The majority faulted Villarreal for using a “backchannel source,” a routine reporting practice that has exposed abuses such as Watergate, the My Lai massacre, Vietnam War deception, and torture at the Abu Ghraib prison.

Seven judges dissented. They noted that Laredo police had spent months investigating Villarreala far cry from the “split-second judgments” to which qualified immunity supposedly applies. “If the First Amendment means anything,” Ho wrote, “surely it means that citizens have the right to question or criticize public officials without fear of imprisonment.”

The Foundation for Individual Rights and Expression (FIRE) represented Villarreal, who drew support from ideologically diverse groups, including press associations, the Institute for Justice, the Cato Institute, the Constitutional Accountability Center, the Electronic Frontier Foundation, Project Veritas, and Young America’s Foundation. Unlike the 5th Circuit majority, they recognized the perils of treating journalism as a crime.

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YouTuber Jake Paul beats Mike Tyson as boos heard during controversial fight

Published

3 hours ago

November 16, 2024

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YouTuber Jake Paul beats Mike Tyson as boos heard during controversial fight

YouTuber-turned-boxer Jake Paul has defeated one of the greatest-ever fighters, former heavyweight world champion Mike Tyson, who is more than twice his age.

Paul, 27, won the bout via a unanimous points decision at the AT&T Stadium in Arlington, Texas – home of the Dallas Cowboys and the biggest NFL stadium in the US.

The fight was already controversial but then arguably failed to live up to the hype. Boos were heard from the crowd in the final two rounds, after a perceived lack of action.

Afterwards, the pair heaped praise on each other. Paul said: “This man is an icon and it’s just an honour to be able to fight him. And he’s obviously the toughest, baddest man on the planet.”

Tyson, 58, described Paul as a “good fighter” but dismissed the suggestion he was out to prove something.

“I didn’t prove nothing to anybody, only to myself,” he said.

Boxing careers compared

This was not Paul’s first professional fight. The American YouTube star made his debut in 2020, and his most high-profile clash was last year against Tyson Fury’s brother Tommy Fury, which he lost by a split decision.

The so-called “Problem Child” has since defeated former UFC contender Nate Diaz, professional boxer Andre August, former Gold Gloves champion Ryan Bourland and most recently MMA fighter Mike Perry.

In contrast, “Iron Mike” Tyson was ranked among the best heavyweight boxers of all time.

During his career, he knocked out 44 opponents – retiring from professional boxing in 2005 after defeat against Kevin McBride.

He returned to the ring in 2020 for a bout against fellow boxing icon Roy Jones, which ended in an unofficial draw.

‘Someone’s getting put to sleep’

Earlier this week, Paul said he believed the bout would not go the distance. “No, someone’s getting put to sleep,” he said. “It’s going to be a war, and we’re both heavy hitters. It’s not going the full 16 minutes.”

Tyson said: “I’ve been through so many ups and downs since my last fight with Kevin McBride.

“I’ve been in rehab. I’ve been in prison, been locked up. Never in a million years did I believe I’d be doing this.”

Several states would not allow the bout to go ahead, and the Texas Athletic Commission only agreed to the fight if there were changes, due to Tyson’s age.

It limited the contest to eight rounds lasting a maximum of two minutes instead of three. Both boxers were also required to wear heavier gloves, designed to lessen the force of punches.

The fight was initially scheduled for 20 July, but was postponed when Tyson suffered an ulcer flareup.

Taylor defends title

Meanwhile, among the undercard fights, Irish boxer Katie Taylor successfully defended her super lightweight world title against Puerto Rico’s Amanda Serrano.

But it was tight. Taylor claimed the rematch 95-94 for all three judges in an epic battle.

The bout came two and a half years after the pair fought at Madison Square Garden, which Taylor won on a split decision.

Bout suffered from buffering

Earlier in the evening thousands of Netflix users in the US reported problems with the coverage, with some posting on social media about buffering.

At one point, more than 98,000 people had reported issues according to Downdetector, which tracks outages.

US

Matt Gaetz: Speaker Mike Johnson will request report into Trump’s attorney general pick is kept secret

Published

3 hours ago

November 16, 2024

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Matt Gaetz: Speaker Mike Johnson will request report into Trump's attorney general pick is kept secret

US House Speaker Mike Johnson has said he will “strongly request” a report into allegations of sex trafficking against Matt Gaetz, who is the president-elect’s choice of attorney general, should not be released.

Mr Johnson said he was against publishing the House Ethics Committee report on Mr Gaetz, 42, who if approved by the Senate will become the nation’s top prosecutor once Donald Trump is sworn in as president on 20 January.

That’s despite Mr Gaetz having previously faced a nearly three-year Justice Department investigation into sex trafficking allegations involving a 17-year-old girl. He denies the allegations and has not faced criminal charges.

Mr Gaetz has also never worked as a prosecutor and has only worked in law for a few years at a local level.

He stepped down from Congress after Mr Trump announced him as his attorney general pick.

His resignation brought the investigation by the House Ethics Committee to an end – two days before it had been expected to release its report into the trafficking claims.

House Speaker Mr Johnson, a Louisiana Republican, said of the probe: “I’m going to strongly request that the Ethics Committee not issue the report, because that is not the way we do things in the House.”

Politicians of both parties on the Senate Judiciary Committee have said they want to see the report on Mr Gaetz, as part of a Senate confirmation process for cabinet nominees that would start next year with public hearings.

Democrats have described the MAGA loyalist as “a gonzo agent of chaos” and his appointment a “red alert moment for our democracy”, while some Republican senators have also raised doubts about his suitability for the role.

Mr Johnson said he planned to urge House Ethics Committee chairman Michael Guest not to provide the report to the Senate Judiciary Committee.

“The rules of the House have always been that a former member is beyond the jurisdiction of the Ethics Committee,” said Mr Johnson, who returned on Friday morning from meeting Mr Trump at the president-elect’s Mar-a-Lago resort in Florida.

“I think it’s a terrible breach of protocol and tradition and the spirit of the rule,” he added. “I think that would be a terrible precedent to set.”

Mr Johnson had said on Wednesday that as Speaker he could not be involved in deciding whether or not to release the report.

US

Malcolm X family brings $100m lawsuit against FBI, CIA and NYPD over ‘conspiracy to assassinate’ civil rights leader

Published

3 hours ago

November 16, 2024

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Malcolm X family brings 0m lawsuit against FBI, CIA and NYPD over 'conspiracy to assassinate' civil rights leader

A $100m (£79m) lawsuit has been brought against the CIA, FBI and New York Police Department (NYPD) who are accused of being involved in the 1965 assassination of civil rights leader Malcolm X.

The case, which has been filed in a federal court in Manhattan, New York, alleges that the agencies were aware of the assassination, they were involved in the plot and failed to stop the killing.

The legal action has been brought by Malcolm X’s three daughters along with his estate.

The NYPD and CIA have not yet responded to the claims while the FBI said it was “standard practice” not to comment on litigation.

Nicholas Biase, a spokesperson for the US Department of Justice, which is also included in the lawsuit, declined to respond.

Malcolm X was 39 when he was shot dead on 21 February 1965 on stage by three gunmen as he prepared to speak at the Audubon Ballroom in Manhattan.

At a news conference in New York on Friday, to announce the details of the lawsuit, attorney Benjamin Crump said: “The government fingerprints are all over the assassination of Malcolm X.

“We believe we have the evidence to prove it.”

For decades, questions have arisen over who was behind his murder.

Malcolm X rose to prominence as the national spokesman of the Nation of Islam, an African-American Muslim group which supported black separatism.

He broke away from the group in 1964 and moderated some of his earlier views on racial separation, which angered Nation of Islam members and resulted in death threats.

Three men were convicted of his murder but two of them were cleared in 2021 after investigators took a fresh look at the case. They concluded some evidence was shaky and authorities had held back some information.

In the lawsuit, which began its process in 2023, it is alleged the NYPD coordinated with federal law enforcement agencies to arrest the activist’s security guards days before the assassination.

It also claims police were intentionally removed from inside the ballroom where Malcolm X was killed and that federal agencies had personnel, including undercover agents, at the site but failed to protect him.

The lawsuit goes on to allege a “corrupt, unlawful, and unconstitutional” relationship between law enforcement and “ruthless killers… which was actively concealed, condoned, protected, and facilitated by government agents”.

Referring to Malcolm X’s family, the lawsuit states: “They did not know who murdered Malcolm X, why he was murdered, the level of NYPD, FBI and CIA orchestration, the identity of the governmental agents who conspired to ensure his demise, or who fraudulently covered up their role.”