Respectful or not, America enables criticism and dissent

Noah Petersen and Priscilla Villarreal live 1,200 miles from each other, Petersen in Newton, Iowa; Villarreal in Laredo, Texas. They share a key connection despite that distance.

Each has encountered government punishment for exercising their First Amendment rights. Both went to court to fight for their freedoms. 

For Petersen, he had the good fortune of litigating in Iowa, where two judges grasp what First Amendment freedoms encompass. So, his civil lawsuit continues today.

Meanwhile, for Villarreal, better luck next time. When her civil case reached the U.S. Supreme Court a week ago, a majority of justices shrugged off the fundamental rights at stake by refusing to hear her appeal.

Despite the confusion and frustration caused by these inconsistent outcomes, the perseverance of Noah Petersen and Priscilla Villarreal provides real insight into the purposes of the First Amendment, even if the Supreme Court was indifferent.

Let’s start with the lessons from Newton.

Peeved by the behavior of certain Newton police officers toward residents, Petersen went to two City Council meetings in 2022 to express his frustrations during the public comment period. Despite Petersen’s calm approach, both times the mayor ordered him to be quiet, then had Petersen arrested, placed in handcuffs and led out of the council meeting for breaking the city rule that barred speakers from making derogatory comments to the council.

In the subsequent criminal case, Magistrate Peter Lahn dismissed the charges. He ruled that while the city could limit public remarks at council meetings, it had to do so under “viewpoint neutral” rules — meaning, government cannot punish people based on the acceptability of their statements.

Magistrate Lahn thereby upheld the central notion that government must equally empower criticism and praise.

“By definition, the term derogatory cannot be considered viewpoint neutral,” Lahn wrote. “… It would be difficult if not impossible for a concerned citizen to comment regarding city policies or the provision of city services without referencing to some extent an official city position.”

Having defeated the criminal charges, Petersen then sued the city, mayor and police chief in federal court for violating his constitutional rights.

Last month in Des Moines, U.S. District Court Chief Judge Stephanie Rose rejected the city’s attempts to justify Petersen’s arrests. She ruled Newton’s derogatory-comments policy and its selective enforcement of restrictions on comments violated the First Amendment. 

Judge Rose wrote, “The record demonstrates that the rule was enforced against Petersen not because his speech was actually defamatory, but because it criticized government officials in a manner they found objectionable.”

Priscilla Villarreal’s fight with local government did not go so well.

Villarreal uses her Facebook site called La Gordiloca to provide news and commentary about events and issues in Laredo, a border city of 250,000 people. Her Facebook page has more than 100,000 followers.

In 2017, Laredo police jailed her briefly on criminal charges for publishing news stories about a border agent’s public suicide and about a fatal traffic accident. Authorities cited a Texas state law making it a felony to solicit previously unpublished information from government employees to use for personal benefit.

That’s correct — Laredo officials arrested Villarreal for engaging in news reporting, making her the first journalist charged under the Texas law.

As in Newton, a Texas state judge dismissed the criminal charges on First Amendment grounds. Like Noah Petersen, Villarreal then filed a federal civil rights lawsuit against the officials involved in her arrest.

But unlike Chief Judge Rose in Iowa, the Texas federal district court dismissed Villarreal’s lawsuit, finding Laredo officials were immune from the claims made in her lawsuit. The Fifth Circuit Court of Appeals upheld that decision, and then on March 23, the U.S. Supreme Court declined to take Villarreal’s case.

The Supreme Court needed four of its nine justices to vote to hear the appeal. That means six justices opposed considering her case and believed the Texas law blocks Villarreal from vindicating her free speech and press rights.

Baffling? Yes.

But thankfully the First Amendment’s endorsement of the free exchange of ideas and information lives on, even at the U.S. Supreme Court.

In a blistering 15-page dissent, Justice Sonia Sotomayor wrote of Laredo police and prosecutors: “Priscilla Villarreal is a reporter who was arrested for doing something journalists do every day: posing questions to a public official. … A free press cannot be made to rely solely upon the sufferance of government to supply it with information.”

Sotomayor continued: “By arresting Villarreal, rather than solely disciplining the employee for any wrongdoing, county officials took this ‘everyday journalism’ and transformed it into a crime. … No reasonable officer would have thought that he could have arrested Villarreal, consistent with the Constitution, for asking the questions she asked. Such an arrest is plainly inconsistent with basic First Amendment principles.”

She said the fact a Texas state law authorized charges and the legal doctrine of qualified immunity do not insulate Laredo officials from liability for their improper actions.

“It is hard to conceive of a more obvious constitutional violation than arresting a journalist who, in searching for corroboration, simply asks a government source for information,” Sotomayor continued. “That is the essence of many journalists’ jobs. The arrest does not somehow become reasonable, and constitutional, merely because an unconstitutional application of a statute authorizes it.”

She wrote: “Tolerating retaliation against journalists, or efforts to criminalize routine reporting practices, threatens to silence one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.

“By denying Villarreal’s petition, the court leaves standing a clear attack on the First Amendment’s role in protecting our democracy.”

Justice Sotomayor then added, as all Americans should, “I respectfully dissent.” ♦