The phenomenon of “citizen journalists” has had a curious history since social media allowed anyone to claim the protections of the First Amendment’s Freedom of the Press. Some, like Carlos Miller, with his blog Photography is not a Crime, spawned movements to protect the constitutional right to video police. Others wore the mantle in the expectation that they could use it to falsely attack with abandon and then hide behind the claim of being a journalist exposing baseless conspiracies.

In Laredo, Texas, Priscilla Villarreal was a bit of both, revealing actual news on her Facebook page, LaGordiloca, with harsh criticism of law enforcement and prosecution. Unsurprisingly, this gained her a significant following as well as some people who didn’t like her very much.

LaGordiloca’s nearly 84,000 [now over 200,000] followers and Villarreal’s wide range of posts (often in both English and Spanish) on community events haven’t earned her consideration as “official” media from the Laredo Police Department (LPD), apparently. And the department doesn’t seem too keen on honoring the First Amendment rights of ordinary folks.

Police last Wednesday charged Villarreal with two counts of “misuse of official information,” a third-degree felony. The information she allegedly misused was provided to her by a longtime patrol officer with the department charging her.

The law prohibited publishing non-public information from a public official with “intent to obtain a benefit.” Here, the benefit was gaining more Facebook followers. You can’t make this up.

The law under which she was arrested was subsequently held unconstitutionally vague and charges were dismissed. She then sued under § 1983 and her case was dismissed in the district court based on Qualified Immunity. It was appealed to the Fifth Circuit, which affirmed 2-1, which decision was subsequently withdrawn and replaced with a 2-1 decision by Judge James Ho reversing the district court.

If 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. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question.

If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.

A foundational exception to QI is that conduct which is so obviously a violation of the Constitution requires no firmly established exception. The qualification is that it’s so obvious that even a cop would know better. It’s a rarely used exception, but ultimately persuaded two members of the circuit panel, even if Chief Judge Priscilla Richmond held the First Amendment too complicated for a cop to grasp in her dissent. More seriously, that the decision to arrest Villareal was validated by a magistrate’s issuance of an arrest warrant demonstrated that the issue was hardly as obvious as Judge Ho held.

No court had construed the meaning of “with intent to obtain a benefit” as used in Texas Penal Code § 39.06 when Villareal was arrested. There was no clearly established law that there was no probable cause for arresting Villareal, and there was no clearly established law that in arresting Villareal based on section 39.06, the defendants were violating her First Amendment rights.

Since the flip-flop resulting in Judge Ho’s view becoming the majority, the Fifth Circuit has taken up the case en banc.

Last week, the full spate of judges on the 5th Circuit voted to rehear the case in a rare move that signals some discontent with Ho’s majority conclusion. Put differently, it’s not looking good for Villarreal, nor for any journalist in the 5th Circuit who would like to do their job without fear of going to jail for it.

This, indeed, is not good news for Judge Ho’s decision given the court’s conservative inclination. The issue is not, as suggested, whether an adverse ruling would make it a crime in Texas to be a journalist. As the charges against Villarreal were already dismissed as the law was held unconstitutionally vague, that’s not before the Fifth Circuit in any event. Rather, the issue is whether to dismiss Villarreal’s suit for damages under § 1983 by granting the defendants qualified immunity. Was it so clear that Villarreal was a journalist that arresting her constituted a First and Fourth Amendment violation should have been obvious even to these cops?

That there was a Texas law that criminalized conduct called “journalism” is shocking, even if the police and prosecutors didn’t try to apply it to what they deemed to be “real” journalists. Apparently, they figured out that it would be flagrantly unconstitutional to arrest a reporter from the network evening news for putting information from a cop on air. But is Villarreal any less worthy of protection? Does the fact that a judge issued an arrest warrant for her insulate the cops from being too clueless to figure it out without a decision from a court explaining it to them using small words?

As sweeping as Judge Ho’s rhetoric was holding that this was as obvious as it gets, that’s not likely to be the issue addressed en banc about the nature of what is so obvious as to not require clearly established law.

That means the opinion necessarily concludes that the action of the state magistrate in issuing the arrest warrants “is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty.” What does that say about the decision of the United States Magistrate Judge, in this case Judge John Kazen, who decided the motion to dismiss on its merits and concluded that the defendants had reason to find probable cause to arrest Villareal under the Texas statute? Is the federal Magistrate Judge, and for that matter the undersigned Circuit Judge, “grossly incompeten[t] or neglect[ful] of duty”

While it’s impossible to say what the outcome of the en banc circuit ruling will be, it will likely not be as clear as Judge Ho’s “it’s obvious” holding. That said, at least it won’t have anything to do with criminalizing people for being journalists, but only for compensatory damages after a wrongful arrest.