« The First Supreme Court Citation to the Scopes Trial | Main | Saturday Music Post - I Wish I Could Shimmy Like My Sister Kate »

Thursday, January 25, 2024

Qualified immunity and the inversion of the law/equity divide

A divided en banc Fifth Circuit inVillareal v. City of Laredo rejected First and Fourth Amendment claims by a citizen journalist arrested for publishing nonpublic-but-lawfully-obtained information. The majority found no Fourth Amendment violation in her arrest for violating a state statute and that it was not clearly established the statute was constitutionally invalid--no precedent held as much and this does not rise to obviousness invalidity; standard qualified immunity stuff. The case produced four dissents including from Judge Willett argued that QI should not apply to this non-fast-moving, non-split-second situation. Again, standard QI stuff at this point.

Here is one paragraph early in the opinion.

Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. 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. Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.

Three things strike me about the passage:

One is the denigration of what the plaintiff journalist does, a theme repeated throughout the opinion. That the journalistic ethics of her practices (contrasted with "[m]ainstream, legitimate media") render her less worthy of legal protection, in combination with a desire to benefit (in "reputation and career") from publishing stuff.

Second, this point captures the inversion of the law/equity divide in civil rights litigation. Historically, courts of law, and the remedies they provided, were the preferred forum for vindicating rights; plaintiffs should turn to courts of equity and equitable remedies only when legal actions could not remedy their injuries. But the majority says Villareal's first move should have been equitable-- she should have "challenged that law in court," meaning refrain from publishing and bring an offensive pre-enforcement EpY/§ 1983 action for a declaratory judgment and injunction. That is, she should have turned to equitable relief rather than legal relief.

Third, that advice imposes a catch-22. The Fifth Circuit may have rejected Villaeal's EpY action on standing grounds--whether because her intent to publish is not sufficiently immediate or likely or because the city disclaims any intent to enforce the law ("of course we would never arrest a journalist for attempting to publish truthful lawfully obtained information"), depriving her of the necessary imminent injury. Courts are forgiving in First Amendment cases, but views of merits infect the standing analysis; this is true of all courts and of standing generally, but the Fifth Circuit is uniquely obvious. This also begins to make the EpY action resemble a licensing scheme--the federal court order acts as permission to publish.

A bad decision all around. Query whether it prompts SCOTUS review. As Steve Vladeck has noted, SCOTUS spends much of its time correcting Fifth Circuit mistakes. What is one more among friends?

Posted by Howard Wasserman on January 25, 2024 at 09:14 AM in First Amendment, Howard Wasserman | Permalink


The comments to this entry are closed.