EFF to Court: No Qualified Immunity for Wrongful Arrest of Independent Journalists

Independent journalists increasingly gather newsworthy information and publish it on social media, often without the involvement of traditional news media. They make important contributions to public discourse and are often the first to report newsworthy events. Courts must scrupulously safeguard their First Amendment rights to gather and publish the news. (Sometimes they are called “citizen journalists,” but of course, many independent journalists are non-citizens.)

EFF this week filed an amicus brief arguing that when police officers wrongly arrest an independent journalist in violation of the First Amendment, courts must order the officers to pay damages. The brief was written by Covington, and our co-amici are the National Press Photographers Association and the Pelican Institute. The brief explains that damages are necessary both to compensate the independent journalist for their injury, and to deter these officers and others from similar misconduct in the future. The case, Villarreal v. City of Laredo, is before the federal appeals court for the Fifth Circuit. A panel of judges issued a great decision in favor of the journalist earlier this year, but the entire court has agreed to rehear the case.

The issue on appeal is whether a dangerous legal doctrine called “qualified immunity” should protect the officers from paying damages. Fortunately, Congress empowered people to sue state and local officials who violate their constitutional rights. This was during Reconstruction after the Civil War, in direct response to state-sanctioned violence against Black people. Unfortunately, the U.S. Supreme Court created a misguided exception: even if a government official violated the Constitution, they don’t have to pay damages, unless the legal right at issue was “clearly established” at the time they violated it. Worse, federal courts can grant qualified immunity without even ruling on whether the right exists, which stunts the development of constitutional law. This is especially problematic for digital rights, because there sometimes will not be clearly established law regarding cutting-edge technologies.

The amicus brief explains the importance of internet-based independent journalism to public discourse. About half of Americans get news from social media. Independent journalists have published important stories on social media about, for example, police violence against Black people. The brief also explains the importance of a damages remedy to protect independent journalists from police violations of their First Amendment rights. Professional journalists often have the backup of their employers, the traditional news media. But independent journalists often must fight alone.

“Damages remedies are important for every journalist—indeed for anyone at all—whose First Amendment rights have been violated. But the need for an effective damages remedy is particularly acute in the case of citizen journalists,” the brief argues. “Many citizen journalists lack the means to effectively enforce their rights, making them more susceptible to intimidation and retaliation. An effective damages remedy is therefore vital both to the individual journalist and to citizen journalism.”

You can read the brief here.