“If the First Amendment stands for anything, it is the fundamental truth that the people, and the press on behalf of the people, must be able to ask questions of government officials without fear of harassment, prosecution, or imprisonment,” they say in a brief filed with Texas news outlets and media organizations.
In a competing brief, the state of Texas says the issues are more nuanced and rejects the notion that the woman known as La Gordiloca was arrested for simply asking a question.
Villarreal has not shown that the officials who had her arrested knew there was no probable cause to do so, the Texas brief states. It also says a magistrate judge issued the warrant and “the officers reasonably relied upon the neutral magistrate’s conclusion that there was probable cause to arrest Villarreal for violating a facially valid statute.”
Some of the judges hearing the case Wednesday asked questions about that point.
“Wouldn't judges know more than police officers do?” Judge Catharina Haynes asked Villarreal's lawyer, J.T. Morris, who said police and prosecutors had no probable cause to investigate or seek the warrant in the first place.
The law, according to court records, defines the criminal “misuse of official information” as using information that “has not been made public ... with intent to obtain a benefit or with intent to harm or defraud another." Authorities had argued that Villarreal could benefit from using the information — the identities of a person who killed himself and a family involved in a car accident — to gain fame on her Facebook page.
A 5th Circuit panel revived Villarreal's lawsuit in a 2-1 decision in November 2021. But the full court vacated that ruling, deciding to grant Wednesday's rehearing before all 16 active judges. In that decision, Judge James Ho wrote that Villarreal's arrest was "an obvious violation of the Constitution."
Ho questioned lawyers for Texas and Laredo on Wednesday about scenarios in which seeking information from public officials can be criminalized.