Across the United States, more journalists are being threatened, harassed, and even apprehended by government authorities for reporting on public officials and public events. In the one nation with an unfettered right to free and responsible expression, the essential work of holding the powerful to account is under assault. In this guest column, Texas journalist Jason Buch puts the threat to the Fourth Estate into perspective and writes about a particular case that has broad implications for press freedom.
– Ricardo Sandoval-Palos
PBS Public Editor
When I left my job at the San Antonio Express-News to become a freelance reporter in 2018, my first assignment was a scoop about U.S. Department of Homeland Security criminal investigators asking to spin off from the U.S. Immigration and Customs Enforcement agency.
A source had leaked to me a letter written by 19 supervisors in ICE’s criminal division trying to distance themselves from the agency’s poor public image. The Texas Observer paid me $282 for breaking that story.
There’s a perception that “Big J” journalism, the fabled altruistic reporting conducted in the public interest, is divorced from economic concerns. The Observer is a nonprofit. I don’t get rich writing for it. But by landing that scoop, I undeniably had participated in a commercial transaction.
That was in the back of my mind as I read the U.S. Court of Appeals for the 5th Circuit’s majority opinion in the case of Villarreal v. City of Laredo. Priscilla Villarreal is a citizen journalist on the Texas-Mexico border. Known as “La Gordiloca” – the crazy chubby lady – she publishes local news and gossip on Facebook video streams. She is a brash, foul-mouthed critic of some local officials.
In 2017, police arrested Villarreal on charges of misuse of official information, which in Texas is a misdemeanor. That law is violated when someone “solicits or receives from a public servant” information that wouldn’t have been released under freedom of information laws and does so “with intent to obtain a benefit.” Laredo police said Villarreal broke the law when she published the name of a federal official who’d killed himself by jumping off a highway overpass.
A judge later threw out the charges. Villarreal sued, alleging local officials violated her civil rights. The case ended up before federal judges from the Fifth Circuit. That Villarreal profits from her unconventional reporting is a point that featured prominently in Judge Edith Jones’s majority opinion ruling against her.
Profound Implications
So, why is one lawsuit in Texas important to PBS audiences and news consumers in the United States?
Our First Amendment provides equal protection to everyone. Villarreal’s lawyers argue that anyone has the right to ask questions of public officials without fear of arrest. Her status as a journalist came into play when her lawyers tried to convince judges that officials who had her arrested should have known they were violating her rights. They argued that the basis of her arrest, asking a police source for information, is something journalists regularly do and is widely known as a protected activity.
A dirty little secret about journalism is that it’s almost always conducted for commercial gain. In decades past, a scoop might boost print newspaper sales or draw more viewers to an evening newscast. When I worked at the Express-News there was a large screen in the newsroom showing which stories were driving Internet traffic to our site and boosting advertising revenue. Just about every journalist reports “with intent to obtain a benefit.”
Freelancing draws a more direct line between individual stories and monetary compensation. New media platforms like newsletters and online fundraising campaigns allow journalists to be paid directly by their audience. Melissa Del Bosque’s and Todd Miller’s Border Chronicle provides analysis of issues and events and breaks news to subscribers. My friend Martin Kuz, a California-based journalist, crowdfunds his reporting in Ukraine. Steve Monacelli, who also often writes for the Observer, is an innovative fundraiser who directly solicits donations. Journalist Ben Camacho is raising money to pay for his legal battles with the city of Los Angeles, which have their own First Amendment implications.
Villarreal has asked the U.S. Supreme Court to take up her case, but Jones’s opinion is the law of the land, for now, in Louisiana, Mississippi, and Texas. If Texas police arrest someone else under the misuse of official information law, it’s unlikely the charges would stick. The local judge who had initially tossed out the criminal case against Villarreal said the law is unconstitutionally vague, although that ruling is limited to one county in Texas. The bottom line was drawn later when, in blocking Villareal's lawsuit, the majority of the Fifth Circuit sent a message that, despite the First Amendment, the government can criminalize reporters who profit from leaked information.
“Today’s decision has profound practical implications,” Judge James Graves noted in his dissent.
“There is simply no way (First Amendment) freedom can meaningfully exist unless journalists are allowed to seek non-public information from the government,” Graves wrote.
Graves highlighted famous leaks from U.S. history that held public officials to account: the My Lai Massacre, the Abu Ghraib war prison scandal, and the Pentagon Papers. I can also name more recent reporting that the Fifth Circuit ruling likely wouldn’t protect: records from the 2022 mass shooting at a Uvalde, Texas, elementary school that upended the official narrative, or audio of sobbing children in a Border Patrol facility in 2018 that caused a backlash against a federal policy of separating undocumented immigrant children from their parents, and the reporting on the trove of records leaked by National Security Administration contractor Edward Snowden.
Through all those leaks and scoops, the government prosecuted some reporters’ sources but has rarely targeted the recipients of leaked information.
It’s a Question of Ethics
Villarreal doesn’t hold herself to anything resembling the ethical standards of the news organizations like the PBS NewsHour, or newspapers where I’ve worked. She often posts screenshots of tips she’s received with unverified allegations – sometimes including names and photos.
There’s something to be said about a judicious withholding of unverified information, or factual information about regular folks who’ve never sought the spotlight. That’s why the Society of Professional Journalists publishes an ethics code, and why many news organizations post their own internal rules of behavior.
Deciding Who is a Journalist
While the Fifth Circuit’s ruling was fairly technical – it found that police had reasonably interpreted Texas law – the majority also strayed into addressing whether Villarreal is a journalist.
“Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly,” Jones wrote. “Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.”
Villarreal says her large Facebook following – she has more followers than any of Laredo’s traditional news outlets – is evidence she’s more in touch with the community than establishment reporters. As University of Texas at Austin journalism professor Celeste González de Bustamante told me when I wrote about La Gordiloca for the Observer earlier this year, Villarreal’s unfiltered broadcasts and brash, south Texas personality give her “a certain amount of authenticity for her followers that they don’t see in traditional publications.”
Laredo police used that popularity against her. To show she obtained a benefit from her scoops, the detective who swore out her arrest warrant affidavit wrote that breaking news “gained her popularity on Facebook.” That Jones finds Villarreal’s reporting for profit so repulsive suggests she “just has an inaccurate model of what responsible journalists actually do,” Grayson Clary, a staff attorney for the Reporters Committee for Freedom of the Press, told me. First Amendment protections don’t only apply to those who “satisfy our imagination of what a responsible journalist looks like,” Clary added.
“At the end of the day, it’s not up to the federal courts to decide what responsible journalism does or doesn’t look like,” he said.
If that’s the case, it’s up to us, the reading, listening and viewing public, to click or subscribe and hold journalists accountable.
-Jason Buchis a freelance journalist based in Texas.