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The Online Public Forum: Do We Have Less Discourse or Just More Public Spaces for Opinions?

By Ellen Denum

Ellen Denum is an attorney from Texas, where she focuses on criminal and immigration law. She went to undergrad at Texas A&M University and received her J.D. from Case Western Reserve School of Law in Cleveland, Ohio. Denum serves on the editorial board of The Federal Lawyer and is the national representative of the El Paso Chapter of the FBA. When she’s not at work, she enjoys hiking around the Southwest with her two rescue dogs. In his concurring opinion in Villarreal v. City of Laredo,1 Judge James C. Ho wrote:

It is the unfortunate reality of American life that more and more citizens are increasingly unable or unwilling to live amicably with those we disagree with. Rather than debate, we would destroy. Instead of engaging opponents in the political arena, we expel them from economic and social life, using every resource available to us. “Our society … once embraced the quintessentially American maxim: ‘I disapprove of what you say, but I will defend to the death your right to say it.’ But our culture … increasingly send[s] citizens … the opposite message: I disapprove of what you say, and I will use every means at my disposal to stop you from saying it.”2

Now, I am not sure it is accurate to say that we live in a more adversarial society than we did in the past and that people are less willing to debate with others who have different viewpoints. I think perhaps it is more accurate to say that people have greater access to platforms that allow them to speak their opinions freely and openly, and most people, in speaking their opinions, are more free and less oppressed than they were in the past.

Based on my typical American-school-system history and my love of old movies and TV shows, it seems that even 30 years ago, you likely lived in a community of mostly like-minded individuals close to where you grew up. If you knew someone who had a different viewpoint on something important to your personal identity, you probably did not socialize much with that person, so you never had someone constantly espousing an opposing viewpoint. In the modern era, we have Twitter—the so-called online town square—Facebook, Snapchat, and TikTok. These platforms offer unlimited ways to state your opinions as publicly, and loudly, and as often as you like. So, you are constantly getting notifications that that one kid from high school now believes “X” and your weird second uncle thinks “Y.” Of course, you can unfriend or unfollow individuals whose opinions you do not want to be subjected to, but even that gets exhausting after a while.

I am not saying this to rail against social media; I think a great thing about social media is that it allows greater access to the world and to new ideas, and it fosters challenging your own ideas—if you want. I don’t know if people are less open to the idea of public discourse or diverging opinions than they were in the past, or if they never truly had to be confronted with it much in the past and it was easily ignored.

The Fifth Circuit took up the case to address whether the district court properly dismissed the § 1983 claims brought by Ms. Villarreal, namely, that her arrest violated her First, Fourth, and Fourteenth Amendment rights.3 The Fifth Circuit ultimately held that the district court incorrectly dismissed her First Amendment infringement claim on the grounds of qualified immunity and her Fourth Amendment claim of wrongful arrest. 4

Further, the Court held that Ms. Villarreal did not allege sufficient facts to support her First Amendment retaliation theory because her exercise of free speech was not curtailed, and that she sufficiently pled facts to support her Fourteenth Amendment selective enforcement claim.5 The Fifth Circuit remanded the case to the district court for further proceedings following its decision.6

The factual background giving rise to this case is important because it is something that could affect any citizen and involves regulating the content we post on social media. Ms. Villarreal is a citizen journalist who regularly posts about local news and issues to her more than 120,000 followers on Facebook. She regularly livestreams videos and is often critical of local law enforcement.7 In 2017, she was arrested for violating § 39.06(c) of the Texas Penal Code, which criminalizes soliciting nonpublic information from a public official for the purpose of obtaining a benefit.8 Notably, offi-

cials from the city of Laredo had never prosecuted anyone under this statute before.9 And in March 2018, a Webb County district court held that § 39.06(c) was unconstitutionally vague.10

While Ms. Villarreal was a prolific user of her Facebook page and often posted about local news, she was charged based on only two pieces of information she shared in connection with two separate events. Based on those facts, even a first time “citizen journalist” could be held accountable under § 39.06(c) of the Texas Penal Code. Ms. Villareal investigated stories and used a nontraditional platform to share those stories. Social media posting has been the subject of much political debate, with individuals from all sides of the political spectrum asking for limits or raging about suppression of their voice—real or perceived.

This case is a perfect example of why open access to posting and reading social media and generally upholding the principals of free speech on social media platforms is so important. As the Fifth Circuit stated in its majority opinion:

It is not a crime to be a journalist … the position urged by the City of Laredo in this case is “dangerous to a free society,” for “[i]t assumes that the government can choose proper and improper channels for newsgathering—indeed, that the government can decide what is and is not newsworthy.”11

The Court makes clear that, at least in this case, there should be no distinction between those who are actively employed primarily or exclusively as journalists and normal citizens who engage in journalistic behavior to educate themselves or others or seek to hold their government accountable through non-traditional media. And we too should be embracing every citizen’s right to report the news, to engage in investigation, and say when they think the government is overreaching. You may disagree with what someone else perceives to be news or what someone deems to be government overreach but diminishing their right to post these things diminishes your own and those of others that you do agree with. As Judge Ho states, we are rarely seeking to silence those we agree with even if we would view the same conduct as improper if it came from an opposing viewpoint, “make no mistake: There’s no way the police officers here would have ever enforced § 39.06(c) against a citizen whose views they agreed with, and whose questions they welcomed.”12

I do agree with Judge Ho that there seem to be more and more people publicly or loudly advocating for the repression of free speech against the “other”—the person whose opinion differs from your own, the individuals who disagree and tell you they disagree with you. This is obviously a bad thing. To see precisely why state-controlled journalism and the repression of free speech are bad, we just need to look at Russia’s coverage of the war with Ukraine and how dissenters are treated.13

While the specific holdings of this case are very important to Ms. Villarreal, and all journalists exercising their First Amendment rights, there are many important lessons/warnings for the legal community contained in this opinion, most importantly, the protection of free speech no matter who it is for or against. We, as attorneys, are uniquely placed and qualified to help address this issue because we have paid thousands of dollars to our respective law schools to give us a constitutional law primer and prepare us to be effective communicators and negotiators. First, we can educate people on their rights. Second, we can actually engage in the debate with our local communities. Third, very simply, we can support journalists and journalistic endeavors.

As noted by the dissent, some may find that reasonable minds can differ as to whether the right outcome was achieved, or the right opinion was made by the Court in Villarreal v. City of Laredo.14 But, hopefully, we can all agree that protecting freedom of the press and freedom of expression is in everyone’s best interest, even for that one friend from high school and your weird uncle. 

Endnotes

1Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022). 2 2Id. at 382 (Ho, J., concurring) (quoting Oliver v. Arnold, 19 F.4th 843, 854 (5th Cir. 2021)). 3Id. at 369. 4Id. at 371 (“[I]t is likewise obvious that Priscilla Villarreal has a constitutional right to ask questions of public officials. … If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well. … If the freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place.”) (internal citations omitted). 5Id. at 376 (“We have no difficulty observing that journalists commonly ask for nonpublic information from public officials, and that Villarreal was therefore entitled to make that same reasonable inference. Yet Defendants chose to arrest Villarreal–and only Villarreal – for violating § 39.06(c).”). 6Id. at 367. The Fifth Circuit further reversed and remanded the district court’s dismissal of her civil conspiracy claims and affirmed the dismissal of her municipal liability claim under Rule 12(b)(6). See id. at 377–78. 7Id. at 368. 8Tex. Penal Code § 39.06(c). 9Villarreal at 368. 10Id. at 369. 11Id. at 378 (citing Amicus Brief by Institute for Justice). 12Id. at 382 (Ho, J., concurring). 13See, e.g., What do Russians see and hear about the war in Ukraine?, CBS News (March 19, 2022, 10:54 A.M.), https://www.cbsnews. com/news/russia-ukraine-war-what-do-russians-see-and-hearat-home/; The Associated Press, Russian reporter put under house arrest over war criticism, ABC News (August 11, 2022, 11:17 A.M.), https://abcnews.go.com/Politics/wireStory/russian-reporter-puthouse-arrest-war-criticism-88248494. 14Villarreal, at 383 (Richman, J., concurring in part and dissenting in part).