With 1st Amendment claims, a plaintiff/victim must be willing to go the distance.

22 November 2021

A recent case in Texas displays just how much endurance a first amendment litigant/victim needs to have a chance to prevail.  The case is Villarreal v. City of Laredo et al. and stems from criminal charges being brought against a non-traditional reporter’s actions of asking questions of the police to gather information to report on a story.  2021 U.S. App. LEXIS 32505 * 2-6 (Case No. 20-40359, dated Nov. 1, 2021).

First the future plaintiff typically endures the damage itself  . . . the harm from the first amendment violation.  This can be some sort of disassociation, like a firing, or police action, such as an arrest.  In Villarreal it was essentially an arrest, starting with an arrest warrant, a voluntary surrender, and processing.  In Villarreal, the plaintiff endured the extra stress of police taking private pictures of her and laughing at and mocking her while she was processed.  Id. at 5-6.  Second, if there is some sort of criminal charge involved, one must endure the defense of same.  In Villarreal, this took the form of a writ of habeas corpus which found the statute at issue constitutionally vague.  Id. at 6.  It is unknown how long she actually was in jail for or the amount of delay before the decision was rendered.  Comparatively, this was fairly quick and simple, with what appears to be one pleading filed and one decision rendered.  Many times, it is not as quick but can drag out for years.

After getting the criminal case dismissed, the plaintiff in Villarreal filed suit and quickly faced a motion to dismiss from the various defendants.  The complaint is detailed and legally complicated and so is the motion to dismiss and concepts involved.  This usually means handling it pro se is not realistic, so there will be typically significant funds to pay the attorney. The judge dismissed each and every claim against all defendants under essentially the theory of qualified immunity.  A set back at the trial level is common, and the lesson is that essentially with a first amendment claim you will need to be prepared to appeal any decision, providing that there are grounds to do so.

The plaintiff in Villarreal did appeal and was largely successful getting the majority of her claims restored and remanded to the district court.  The basic question on whether qualified immunity applies to the officials’ actions is if they were “objectively reasonable in light of clearly established law.”  Id. at 7.  The basic ruling was that despite there being a statute that stated it was a crime to “a person commits an offense if, with intent to obtain a benefit . . ., he solicits or receives from a public servant information that: 1) the public servant has access to by means of his office or employment; and 2) has not been made public.”  Tex. Penal Code § 39.06 (c).  The gist of the court’s straight-forward reasoning was “[i]f the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.”  Id. at 2.

However, as stated, it was not a total victory at the appeals court for the plaintiff.  The plaintiff alleged the various officials violated her first amendment “rights in two ways – first, by infringing on her constitutional right to ask questions of public officials, and second, by arresting her in retaliation for her exercise of first amendment rights.”  Id. at 7.  For the latter, elements in the fifth circuit that must be met are that the plaintiff “must show that: 1) [he] was engaged in constitutionally protected activity; 2) the defendants’ actions caused [him] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and 3) the defendants’ adverse actions were substantially motivated against [his] exercise of constitutionally protected conduct.”  Id. at. 15. In the fifth circuit, in contrast to others, the second element requires that the plaintiff’s exercise of free speech be curtailed.  Id.  Since the Villarreal plaintiff did not adequately plead same, the district court’s decision on this part was not overturned.  The fifth circuit also did not overturn the district court’s decision with respect to the plaintiff’s request for declaratory and injunctive relief.  Id. at 17.

Overall, the plaintiff in Villarreal has fought hard to get to a point where the case will enter the discovery phase and will then likely be able to go to trial on the remaining claims.  But consider what she has been through already!  The arrest, likely money spent, legal hurdles, and the stress.  The practical reality is that if you are considering pursuing a first amendment claim and other constitutionally based claims, be prepared for the long-haul.  If you think you may have a first amendment or other related constitutional claim, feel free to contact this office, but understand that you will likely need significant endurance to have the chance of coming out on top.