Litigation Update: Villarreal v. City of Laredo

Chayila Kleist: Hello and welcome to the FedSoc Forum webinar call. Today, October 9th, 2024, we're delighted to host a litigation update on Villarreal v. City of Laredo, Texas. My name's Chayila Kleist and I'm an Associate Director of Practice groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program as the Federalist Society takes no position on particular legal or public policy issues. In the interest of time, I'll keep the introduction of our guests today brief, but if you'd like to know more, you can access their impressive full bios at FedSoc.org. Today we are fortunate to have with us JT Morris, who is a supervising senior attorney at the Foundation for Individual Rights and Expression (FIRE) Mr. Morris joined fire after six years of running his own law firm where he focused on litigating the First Amendment, anti-SLAPP, and digital media issues.

During that time, he testified before the Texas legislature on anti-SLAPP issues and advised organizations and officials on legislation and policy affecting freedom of speech and freedom of the press. He also provided commentary on First Amendment and other government issues and has been featured in several media outlets, including the Texas Tribune, Capital Tonight and Vice. Also joining today as our moderator for today's program is Casey Mattox, who currently serves as Vice President for Legal Strategy at Stand Together and as a senior advisor at Americans for Prosperity (AFP). In these roles, he advocates for and creates strategies and partnerships to work towards Constitutionally limited government that protects the civil liberties of all Americans prior to joining Stand Together at AFP, Mr. Mattox's legal career focused on defending First Amendment rights of students, faculty, healthcare workers and religious organizations. And I'll leave it there. One last note and then I'll get off your screens. If you have any questions, please do submit those by the question and answer feature like found at the bottom of your Zoom screen, so they'll be accessible when we get to that portion of today's webinar. With that, thank you all for joining us today. Mr. Mattox, the floor is yours.

Casey Mattox: Thank you Chayila, and thanks to FedSoc for allowing us to have this conversation. On Friday, the Supreme Court will conference Villarreal v. City of Laredo. This is a very interesting case that I've been following for quite some time involving qualified immunity, but in a context you may not be as familiar with, when we typically think or hear about qualified immunity claims, usually they're in the context of a police response in some sort of urgent situation, discharge of a gun or something like that, right? So arrests or other circumstances involving police, there are sort of immediate, urgent situations, but the doctrine is a lot broader than that. It applies not just to police anyway, and that's something that I've dealt with a lot in my career and certainly FIRE and others deal with that a lot when you're litigating against public universities. Qualified immunity applies anytime you have people acting under color of state law and there are constitutional claims. And so this is a good illustration of that I think, and it's made more interesting by the way this case is coming to the Supreme Court and the decision from the Fifth Circuit, but I won't spoil JT's story there. So let's go ahead and kick it off JT, with just kind of the explanation of the history of this case and how we've gotten to the place that you're filing this cert petition.

JT Morris: Yeah, thanks Casey. So FIRE represents Priscilla Villarreal. She's an independent journalist in Laredo, Texas, and if you know anything about Laredo, a town on the Texas border like most places on the Texas border, it's a place that has been marked by cronyism and corruption and all kinds of government mischief for decades. And about 10 years ago, she started covering local news, live streaming police interactions, which really had people sort of gravitate towards her. She was showing what Laredo police were doing, good and bad. She started gaining the trust of the public. She started getting more tips, she developed more sources, which led her to learn things about government officials behaving badly, and she started publishing news on that, mainly on her Facebook page, which as of today, I think she has over 250,000 followers where people looked at her reported news in Laredo and the local community.

Well, as you might imagine, local officials didn't like that and they started this campaign of harassment. The local district attorney took her into his office with other officials and chided her. They harassed her on her job, but that didn't stop her. She kept reporting and she kept doing her job as a journalist. And so in 2017, Priscilla published two stories, one about a high profile suicide of a border agent who jumped off an overpass in Laredo and the other story about a fatal car accident. Both times she got tips from private citizens about these stories. Both times she texted a police officer in Laredo, Barbara Goodman and asked Goodman, Hey, can you confirm this information I received about these news stories? And both times the police officer freely volunteered the facts, which Priscilla then published. Well, local officials, police and prosecutors got wind of this. And so they dug up a statute in Texas, which makes it a felony to solicit or receive information from a public servant intending to benefit if the government considers that information nonpublic.

And so they concocted arrest warrants saying that Priscilla broke this criminal law simply because she asked a Laredo police officer for these newsworthy facts and then published them because she wanted to beat other news outlets to the scoop and gain more readers. Basically, they arrested her for everyday journalism, right? That's what reporters do. They ask government sources questions, they get facts, they publish 'em to citizens. And so after these warrant issues, arrest warrants issued, Priscilla turned herself in. She soon filed for a writ of habeas corpus, and a local trial judge in Texas found this statute that they had, these officials had used a criminalize her journalism unconstitutionally vague. And so after that, Priscilla sued under Section 1983 asserting First and Fourth Amendment violations arguing that, “Hey, these police and prosecutors arrested me for something that the First Amendment squarely protects, and I want to have a remedy for that.”

The district court dismissed the case on qualified immunity grounds arguing that or asserting that although Priscilla had strong free speech interests, that a reasonable official would not have known that enforcing a penal law against everyday journalism violated the First Amendment. And so Priscilla could not sue these officials for damages. She appealed to the Fifth Circuit where a two-one panel led by Judge Ho reversed, Judge Ho said If the First Amendment means anything, it's that Americans have the right to ask government officials questions without being thrown in prison for it. But the Fifth Circuit decided to hear the case en banc in a very, very splintered 9-7 decision agreed with the district court holding this police and prosecutors had qualified immunity and because they simply enforced Texas law and they had no reason to second guess the legislature, and so they had probable cause to arrest Priscilla for her routine journalism. And now we are up at the Supreme Court. Priscilla has filed a petition for cert, and as Casey told you, the justices will consider the petition for the first time on Friday.

Casey Mattox: Excellent. So again, this is a nine-seven split decision out of the Fifth Circuit and JT, the judges, the kind of lineup, not necessarily all 16, but the ones that are going to be notable, I think for the audience here, give us a sense of what we're looking at in terms of the split in the Fifth Circuit on this question.

JT Morris: So the majority, Judge Jones wrote the majority opinion. She was joined by Judge Smith, Judge Haynes, Judge Wilson, Judge Duncan, Judge Inglehart. The dissents, there were four dissents with seven judges joining it across them. So one was written by Judge Ho, one by Judge Willett, another by Judge Graves and another by Judge Higginson. Six of those in judges, including Judge Elrod, joined in all four. Judge Oldham joined in Judge Higginson's dissent, which focused on the retaliation objective evidence issue that the Supreme Court had just resolved in Gonzalez v. Trevino last term. Judge Ho wrote a pretty scathing dissent, sort of reiterating what he had said in his panel majority opinion and arguing that the majority opinion treats the First Amendment as a second class right and basically opens the door for law enforcement to find a statute, any statute, anytime they want to criminalize the exercise of a familiar First Amendment right and get away with it.

Judge Willett's dissent focused as he has before on attacking the doctrine of qualified immunity, pointing out how this case shows how problematic it is, in arguing that the majority opinion required Priscilla to have an encyclopedic jurisprudential knowledge of the law while excusing these police and prosecutors for not having basic knowledge of First Amendment rights. Judge Graves wrote a dissent focusing on the free press issues at stake, and Judge Higginson wrote a dissent focusing mostly on, in arguing that the majority ignored allegations, reminding everybody this is at the motion to dismiss stage and again, focusing on some of the objective evidence that in his mind would meet what then became the Supreme Court's test for that under Gonzalez v. Trevino when you have a retaliatory arrest case.

Casey Mattox: So there's a bit of a dispute between the majority and the dissents, especially I think Ho and Willett, if I'm not mistaken, especially Ho on the applicability of this law in the first place to be a Villarreal. Can you talk about that a little bit and how that exchange, how that's relevant I guess, or not to the cert petition from your view?

JT Morris: Yeah, so Judge Ho sort of took a two-pronged approach to this. He said, look, obviously this violates the First Amendment when you arrest somebody for routine journalism where you arrest somebody for asking the government officials questions, and that's what the arrest warrants were based on, right? There was no fact, no circumstance in the probable cause determination other than this routine news gathering and reporting. He also focused on the statute itself and the fact that it criminalizes seeking information that the government considers non-public. And he gives a couple really interesting examples from oral argument where the attorney for the state of Texas and the attorneys for the individual officials couldn't even agree whether something would be non-public or not and would be punishable. And he makes the point if they can't agree on it. How can we expect citizens like Priscilla to understand whether or not they're violating this felony statute when all they're doing is simply asking for information as the constitution guarantees?

Casey Mattox: And what's the history of the enforcement of the statute? I think you alluded to, you said that they dug up the statute. What's the history of the way the statute had been enforced?

JT Morris: So the statute has four subsections and three of 'em are the enforceable crime. And then one is a definition, what the statute is called, it's called misuse of official information. And what it's really designed to do is get after things like bid rigging or blackmailing officials for information, things that we would all say, okay, that's probably a crime. Nobody had ever, at least locally, had ever enforced this subsection that they enforced against Priscilla against journalists, other people who asked the government for information routinely and across the state of Texas, it had only been enforced twice in two reported decisions, and both times the court of appeals overturned those convictions because they also found the law had vagueness problems. So really there was no basis in any Texas court decisions, certainly not any federal court decisions that would have told a reasonable official that it was okay to enforce this law against somebody asking a government official for information as part of reporting the news or simply just asking a government official for questions point blank.

Casey Mattox: Yeah. Well, and then it's interesting between the majority and the dissents, you have the sort of on one side, the majority is looking at the real and basically says, look, the statute says what the statute says. She should have gone and done her research and complied with the statute and the dissents are basically saying, this statute has never been interpreted or understood this way. And here are all of the ways the statute doesn't even apply, much less the fact that even if it did, it's sort of regulating journalism, which should have been an obvious First Amendment problem. Is that kind a fair description of the fight between the majority and the dissents here?

JT Morris: Yeah, I think so. And one of the points we make in our sur petition is that the majority kind of starts the analysis backwards. It says, first we have to look as to whether VRL complied with Texas law instead of saying, did the officers comply with the Constitution? And that's a big point that both judges ho and Judge Graves make in their defense, Judge Ho especially. And that's where he gets at this idea that the majority is treating the First Amendment as a second class, sort of turning the Fourth Amendment probable cause element from a check on government power into a weapon. So long as officials can sort of check the probable cause box under any state statute, they can find and shoehorn protected speech into it under the majority's view. That's enough to show probable cause and it's enough to escape liability even if that probable cause is based on nothing more the exercise of a fundamental First Amendment.

Casey Mattox: So why does qualified immunity matter in this case? What's at stake basically in terms of the grant of qualified immunity here? Basically are there, if the court denies cert, what happens to the case, first of all, and I guess you can kind of think about it also is what else would she be able to do if qualified immunity given qualified immunity? How else might she be able to vindicate her rights despite the existence of qualified immunity in a case like this?

JT Morris: Yeah, I think why qualified immunity is so important here is because so often, especially when we're talking about First Amendment arrests or other sort of adverse government action against the exercise of First Amendment rights, there's not really equitable relief available. It happens, somebody gets thrown in jail because they criticize the government or somebody gets removed from a city council meeting because they said something mean about the mayor, what have you. There has to be a remedy to vindicate those rights. And under 1983, the remedy you have in those situations when you sort of lack an ongoing violation is a damages claim. And that's what Priscilla brought here. Ifer denied that her case is over and she's without a remedy. I think more importantly and more troubling if the Fifth Circuit decision stands, it sort of signals to law enforcement that, hey, if you can go find a statute and you can argue that this protected speech sort of fits within the four corners of a statute, you can criminalize that protected speech. And if you're sued for damages under Section 1983, you get away with it. And those Americans who suffer the consequences of that, they don't have a remedy. That's a really troubling outcome for protecting not only First Amendment rights, but also ensuring that government officials are held accountable when they violate the Constitution.

Casey Mattox: So both in my career, obviously the work that FIRE does, the place where I would see this most often would be in the university context. So take this completely out of the policing context, talk about how qualified immunity, basically sort of the barrier it presents or the issues that you all at fire see with qualified immunity happening in the university context.

JT Morris: So qualified immunity generally, and I think Casey kind of hit on this a little bit. What it is, it's a defense and really it's a judge made defense that allows government officials, whether it's police or university administrators or a town mayor to escape not only liability but having to face a lawsuit if the plaintiff cannot show that the right they're suing upon was clearly established at the time that the government officials violated that. What that has come to mean in a lot of the lower court, the court of appeals and the district courts is if a plaintiff can't show a case or a prior decision exactly on point, then the officials get qualified immunity and they're off the hook. And as Judge Willett has pointed out, that's problematic because courts are so often saying, well, we just don't, we find this right. We find this violation wasn't clearly established without saying that, well, even if it's not clearly established, we're saying it's clearly established now.

So you get this vicious cycle of courts not clearly establishing constitutional rights, and so defendants just keep repeating the same thing over and over again. Or if there's a little bit of a factual difference, they can point to that and they still get qualified immunity in the campus setting. That happens quite a bit where you have campus administrators, for example, enforcing bias policies or hate speech policies or similar policies against speakers that they disfavor. And as long as they can show sort of a factual difference. For example, if one of my favorite cases to point to is Hunt versus regent of University of New Mexico where you had a medical student posted some pretty colorful and anti-abortion positions on his Facebook page, the university punished him, he sued, and the 10th Circuit said, well, because he posted it on Facebook, it's not clearly established that punishing him violated the First Amendment because Facebook's this new technology, even though, I mean we all know it's a familiar and fundamental First Amendment principle that you can't punish people for expressing their views. That's viewpoint discrimination. The government can't do that. And so you have cases like that that I think really stand out and it tends to chill. I think it can chill speech on campus. Justice Thomas in Hoggard v Rhodes, which was I think a religious speech case, Casey, if I'm not mistaken kind of pointed this out.

One of the problems with qualified immunity is that courts have taken this one size fits all approach. So what's clearly established law, for example, for a police officer in the heat of the moment facing a dangerous situation, courts are also saying, well, we need the same sort of specific factual identity to a prior case in campus speech decisions or cases priscilla's where government officials are taking days, weeks, months to punish somebody for their speech. That can't be right where officials have the time to consider the consequences of their intended course of action, and they violate the Constitution anyway. Qualified immunity should be no shield, and that's a point we've made. It's a point a lot of our amici have made, including Americans For Prosperity in a brief that Casey's helped author. Qualified immunity. if its genesis is to protect officers who are making split second life and death decisions. Well, it should be cabined to that if it's to exist at all. But certainly in any case, it should not extend to more deliberate unhurried violations of the First Amendment.

Casey Mattox: And I think you point to the Hoggard decision, the court there had denied cert, but in the denial - the dissent from denial, I think it was Justice Thomas essentially invited, said, look, we really need to reconsider qualified immunity in a case like this in a case dealing with sort of not the police misconduct kind of cases that typically are what we think of, but the application of qualified immunity in a case where, as you say, there's sort of slow deliberate processing of the decision. So I think you've sort of hinted at this already, this case. Walk us through, I guess a little bit how you view how the court could not address qualified immunity generally in this case, but basically separate qualified immunity law generally from these kinds of cases. What's sort of the way that you would hope that the court would distinguish these situations?

JT Morris: I think there's a few ways that we certainly point out in our petition. I mean, one is that our view certainly is that what these officials did at Priscilla was an obvious constitutional violation, right? Where you don't need a factual, factually identical precedent for a reasonable officer to understand that arresting somebody for asking the government questions and publishing what those government officials share violates the first amendment. That's something so familiar to most people. I mean, every day we see reporters at government press briefings or concerned parents asking and texting school board officials questions about what's going on at the public schools. And you can think of lots of other examples. And so I think in the First Amendment context, that's especially important where we have most people are aware of clear fundamental founding First Amendment principles. Like you can't throw people in jail because they criticize the government.

You can't throw people in jail because they ask the government questions. Things like that, that clearly established tests kind of goes out the door a little bit because what reasonable officer needs a court to tell them they can't do that. I think another area is, I think what we just touched on, Casey, this idea of more deliberate, more unhurried decisions that end up violating the Constitution. You don't need clearly established law again to put an official on fair notice that they're violating the Constitution because they have time to consider the consequences of their action. I mean, here we had district attorneys, people trained in the law who certainly had they opened a case book would've found 3, 4, 5, 6, 7 Supreme Court decisions that would've put them on fair notice that they could not concoct an arrest warrant to go after Priscilla. And certainly they could have informed the police officers who work with them, you cannot concoct this arrest warrant and go get it signed off because that will squarely violate the fourth and the first amendments.

So I think cabining qualified immunity when it comes to obvious First Amendment violations, unhurried first amendment violations, those sorts of things where there's no need to protect officers who are making, or government officials who are making really spur of the moment factually intensive decisions to contrast it with something like excessive force. You might have different facts scenarios where maybe using a taser is excessive force, but a couple of things change and maybe it's not the case with most First Amendment cases and certainly not the case when you have a First Amendment violation that follows a deliberate plan or deliberate process by officials that violates the Constitution.

Casey Mattox: And to what degree do you think the challenge, obviously in a case like this is you have a statute that seems sort of a puzzling statute, and to what degree should officials be able to rely upon a statute that's been enacted into law and it sits there without a red flag on Westlaw, however unconstitutional it should appear, the argument would be, look, it was still law. And so you government officials who looked at the statute, this conduct fit within the four corners of the statute qualified immunity just has to protect people when they've looked it up and you fit within the corners of the statute so they're protected. How do you respond, I guess, to that sort of argument that the qualified immunity analysis should end there?

JT Morris: Yeah, well, I think one response is to point out that three circuits disagree with that approach and disagree with the Fifth Circuit’s approach. Here it is the split we identified in our circuit petition where you have multiple circuits saying, look, if you would enforce a statute in a way that obviously violates the first amendment, qualified immunity is no shield. And so what that really means is if an officer is considering enforcing the statute, but a reasonable officer would know the basis for enforcing that statute is no more than something the First Amendment obviously, or fundamentally protects qualified immunity, is not going to provide a shield. So in other words, government officials can't sort of shroud First Amendment violations simply by pointing to a statute. That's a point that Judge Ho expanded on quite a bit in his dissent, pointing not only to the circuits we've discussed that say shrouding violations in the statute doesn't mean you get qualified immunity. It's quite the opposite, particularly when you look at the plaintiffs of section 1983, which tells under the color of any state statute, we probably, one of our primary arguments is you don't need to go beyond the plain tacks. If a government official enforces a state statute in an obviously unconstitutional way that meets Section 1983, qualified immunity is no shield to that, and a person who suffers a constitutional violation should be able to proceed with their lawsuit.

Casey Mattox: Yeah, this is the really interesting thing, right, is qualified immunity is sort of the judicially created exception to Section 1983, which holds state officials accountable when they violate your rights and they're acting under color of state law and that the breakdown of the Fifth Circuit is essentially, well, when you are acting under the color specifically of a state law, does that shield you from liability? Because well, it was the - all right, I'm back. So is that me or JT? It must've been me who dropped there for a moment. Apologies for that. So I think as we broke up, I was basically, I think repeating some of what you had said, jt, which is just that you have this kind of breakdown between the dissent and the majority where the question is under Section 1983 when it says under color of state law, can it nevertheless shield you from shield an official from liability because you're acting under the color of a state law.

And so that's kind of one of the conflicts that comes up in this case. But you had said, I think that this point, that is a kind of judicially created doctrine. So I think to the extent that it is, it does seem to create an opportunity for the court to consider some of these factors and decide, well, do we want to change that judicially created doctrine in different ways in order to account for some of these differences. So I'm going to stop there and see if we have other questions. So I would encourage you, if you have questions, please drop them into the q and a function there. We have a couple that we can begin to answer. So one was basically a person asks, what was the majority's rationale to say this was not a retaliatory arrest? It seems like at least as we've kind of presented the facts here, that it feels like a retaliatory arrest situation. What's the argument that it wasn't really a retaliatory arrest and how important, I guess I'll add is that to the cert petition?

JT Morris: Sure. So the majority, again, they sort of started with this Fourth Amendment analysis, as long as the officials had probable cause based under the four corners of the statute. In other words, could they squeeze protected speech into the statute if they can, that's enough, right? The statute shields, that was sort of the main point of the majority's reasoning. It also said that, and this again, this came out before Gonzalez v. Trevino, that Priscilla's allegations didn't show objective evidence that even if they had probable cause that they hadn't enforced this law in a selective way, Judge Higginson's dissent focused on that and disagreed. He said, if there's any evidence of selected enforcement that satisfies that in vis carve out to the general probable cause bar, this is it. And as far as the cert petition and really Priscilla's claims in general, she certainly has alleged a retaliatory arrest claim that these government officials were motivated to punish her because of her past criticism of them. But there's also a direct First Amendment claim here that focuses solely on the fact that the only basis for probable cause was the exercise of a fundamental first amendment right, the right to ask government officials questions and share with other citizens what those officials volunteer. So it's retaliatory for sure, but one of the focuses of our SUR petition is that, look, this was a direct First Amendment violation. So whether Nevis comes into play at all, you don't need to get there if you don't want to. Hopefully that answers the question.

Casey Mattox: Yeah, no, that's very helpful. So next question was do you have some of the defendants here are district attorneys, right? So you have police officers and district attorneys. Is that the full list of them?

JT Morris: Right.

Casey Mattox: These are the defendants. So given that, how should the court think about district attorneys and qualified immunity in the context of people who have specific legal training, ethical obligations that are sort of charged with a day-to-day job of researching and interpreting the law?

JT Morris: Yeah, I think if the test for qualified immunity in its current form, it is what a reasonable officer would understand under the circumstances. So it sort of transforms. And what would a reasonable district attorney understand under the circumstances while having six months to decide whether or not to enforce an arrest warrant and create an arrest warrant against Priscilla, having legal training, understanding basic First Amendment principles, being able to go into the case reporters or go on to Westlaw and pretty quickly find Supreme Court decisions that say, look, you can't punish people when the government itself releases information, whether the government does it intentionally or by mistake, that should carry a lot of weight here in any similar case.

Casey Mattox: All right. And then there is the question about basically, so it's a judge made QI is a judge made doctrine. It's not in the text of section 1983, and the court has dealt with a lot of arguments that this is an unworkable doctrine, that there are problems with the way qualified immunity is playing out. What about basically legislative answers, Congress, state legislatures responding and basically eliminating the judicial doctrine and possibly substituting some form of immunity is necessary or something to basically replace qualified immunity with something that would be actually created by statute. Is there…

JT Morris: An opportunity? I think we've seen that so far in a couple of states. I know Colorado is an example, right? Who eliminated qualified immunity for claims under their state constitution? That's an approach that I wish a lot of states would take. I think state constitutions are sort of a treasure trove, a very unmined treasure trove of potential remedies when people have their rights violated. It's just a lot of states don't have vehicles like Section 1983 to provide remedies under the state constitutions. And in terms of Congress, yeah, it would be great if we had a congressional solution that I think, speaking in my personal capacity here, abrogated qualified immunity and sort of reaffirmed the text and promise of section 1983. But yeah, there is, I think you're seeing more criticisms in the federal judiciary of qualified immunity. Judge Carlton Reeves from the Southern district of Mississippi had a scathing rebuke of qualified immunity in an opinion about maybe four or five months ago. Judge Willett has been an outspoken critic of it. Judge Ho has been a critic of it in the First Amendment context, as we Nord earlier, justice Thomas in his statement, respecting the denial of certain huggers V Road sort of questioned the scope of what QI has become, which is sort of this albatross hanging around the neck of any plaintiff who sues government officials for damages under section 1983, even in really brazen violations of the Constitution.

Casey Mattox: And I think as you had mentioned before, I think that the challenges, because you have multiple, I think judge created doctrines on sovereign immunity and then qualified immunity, these things kind of tie together so that in an ideal world, perhaps for example, if a university violates your rights and you can sue the university because officials at the university violated your rights, but as anyone who's attempted to do that knows it doesn't work because you've got, if you're suing for damages, even if it's nominal damages of a dollar, the problem is now you've got, well, you have a sovereign immunity problem with suing the university as a state institution, and then you get to the qualified immunity questions. And so that's why these things end up being a real obstacle, even when the law seems like this really ought to be a pretty solid claim. We have a question about the district attorney's involved in this case. Why aren't they entitled to absolute immunity?

JT Morris: Yeah, both raised absolute immunity at the district court. The district court denied that defense finding that it was outside the scope of the judicial process. This was pre indictment, pre-charge. It was their involvement in working up and encouraging and supporting and giving advice in sort of concocting these two arrest warrants. And so they didn't cross appeal that. So the absolute immunity question has been answered.

Casey Mattox: And then in your petition, can you give us kind of more specificity as to the petition, the specific conflict that you are addressing in the cert petition?

JT Morris: Yeah, so I see the question here. We're not asking the Supreme Court to overrule any prior decisions. Quite the opposite. We sort of have sort of two avenues that we're addressing here. The first is the Fifth Circuit's majority decision. So squarely conflicts with the Supreme Court's prior decisions that the Supreme Courts needs to review and correct that. And there's also the conflict we discussed earlier between the circuits that have held when officials cannot sort of launder constitutional violations through state statutes and receive qualified immunity in the Fifth Circuit decision, which says they can.

Casey Mattox: Yeah. So yeah, that tricky spot that we had discussed before the court recently dealt with presidential immunity. Do you see any interplay between the immunity conversations that were happening in Trump v. United States and the qualified immunity questions here?

JT Morris: To be honest, I haven't really thought about it. I'm sure some people smarter than myself have probably written about that or thought about it. So I just don't have an answer either way.

Casey Mattox: Alright. I think any closing thoughts from you before?

JT Morris: I don't. I do see a question in the chat about the amici lineup, and I'm happy to discuss that. One of the things that Judge Ho pointed out in his dissent was the really diverse coalition of Amicus that have come to support Priscilla, and it's bore out even more at the search stage. We have 13 amicus briefs with 41 participants, and it's pretty diverse. We have people, we have First Liberty Institute, Americans for Prosperity, Institute for Justice, sort of on the one hand. On the other hand, you have groups of journalists and media organizations and public transparency organizations all writing in both on the question of the First Amendment right, how important it is to preserve and make sure that Americans have the right under the First Amendment to ask government officials questions to publish with those officials there and how essential that is to our form of self-government.

And also you have quite a few amici weighing in on the qualified immunity question, why qualified immunity just has no place here, particularly given this was a more deliberate government action against the exercise of First Amendment rights and a government action against a First Amendment rights. So familiar that every American knows it. Again, we see people asking the government questions in action every single day. And I think you can imagine not only right does the Fifth Circuit majority opinion threaten that right for journalists, but it threatens that right for anybody. I mean, you can imagine somebody sending an email to a school school board saying, Hey, what are you guys, can you tell me what books you are ordering next year? And they get arrested for that. Or somebody emailing the city manager, Hey, can you tell me what this person is getting paid? The city engine manager discloses that and the asker publishes it and they find themselves in jail for it. So something that I think both as a fundamental First Amendment principle is worthy to defend and something that is worthy to defend in terms of making sure that officials are accountable when they violate the first amendment of these sorts of ways.

Casey Mattox: Well, thank you very much, JT. I think obviously you've got the court's going to conference the case on Friday, so you may find out an answer relatively, relatively soon, or you may be one of those that gets held over for a while. So I guess we will soon find out. Chayila, I will hand the floor back over to you.

Chayila Kleist: Sounds good. Thank you both so much joining us today. Really appreciate you taking this time out of your afternoons and sharing your expertise and insight. Thanks also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.