Texas vs. Citizen Journalism

​Who qualifies as a journalist? Do you have to work for a mainstream media outlet? If you don’t have the imprimatur of an award-winning newspaper like The New York Times or Washington Post, does that negate your right to gather and convey information?
 
That seems to be the case in certain parts of Texas, where police have twice recently arrested private citizens for committing the crime of journalism. In 2021, the Fort Bend County Sheriff’s Office arrested and strip-searched Justin Pulliam – who posts on the YouTube channel Corruption Report – for filming police during a mental health call. Despite following police instructions to stand away from the interaction, Pulliam was charged with “Interference with Public Duties,” a Class B misdemeanor under Texas state law.
 
It wasn’t the first time Pulliam had been legally harassed – earlier that year he was ejected from a press conference because authorities said he did not qualify as a journalist.
 
A similar situation happened back in 2017, when Laredo police arrested citizen journalist Priscilla Villareal under a statute prohibiting the solicitation of nonpublic information where there is “intent to obtain a benefit.” AKA journalism. The Fifth Circuit initially sided with Villareal, with Judge Ho writing:
 
“If the First Amendment means anything, it surely means 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.”
 
Unfortunately, the full court backtracked during an en banc appeal, finding that city officials had qualified immunity. As we wrote at the time, that ruling set a terrible precedent for freedom of the press – sending a message that reporters should be wary of arrest and reprisal for daring to ask questions of government officials.


Now, Pulliam’s case is up before the Fifth Circuit too, following a Texas district court’s rejection of the defendants’ qualified immunity argument. We’ll see whether the judges get it right this time and acknowledge that Corruption Report constitutes a “legitimate” media outlet. In Villareal’s case, Judge Edith Jones suggested that her Lagordiloca page was not.
 
We respectfully disagree. Courts should not be in the business of determining who is and who is not a “legitimate” reporter according to platform or reporting style. The changing technological landscape has enfranchised a new class of citizen journalists no less deserving of respect and the protections of the First Amendment than their more well-heeled counterparts.
 
Offering a step in the right direction, the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden and Rep. Jamie Raskin, brings all sorts of journalists into the fold and provides a shield for reporters’ notes and sources from prying prosecutors. The PRESS Act defines a covered journalist as someone who “gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns news events or other matters of public interest for dissemination to the public.” That would certainly include Pulliam and Villareal.
 
The House passed the PRESS Act by unanimous voice vote earlier this year. The Senate should follow up and send it to the president’s desk for signature.
 
As for the Fifth Circuit, the Pulliam case is a great chance to revise its stance and catch up with the evolution of the fourth estate.