after they try to turn routine news gathering and reporting into a felony no person could have found the mysteria out committed a crime simply for asking a police officer verify facts in the course of m routine reporting of the local news in fact every reasonable fishel would have understood that mysterio was doing no more than exercising a court said in a freedom of speech and of the press and that's the right to ask government sources for brief this case primarily as a retaliation case rather than just as a traditional textbook st amendment case big we we focus on the retaliation aspect  and focusing on the probable cause instead of focusing on the st amendment violation that was a hand fear and as we do to me then you have an easier claim you can avoid all over television doctrine issues by just focusing on do you preserve the backup plan because i'm surprised the tree as a backup plan rather than your primary plan i think your are that's correct it is an easier claim but again because the district court focused on probable cause we addressed the district and finally by releasing that information before other news outlets missed the area so we're gaining popularity on facebook which is where she reported the local news and some those arrest warrant affidavit show what every reasonable official and frankly every ordinary citizen would understand as court journalists asking government sources for information or facts to warn the public while hoping you suit your betters that's not a crime and especially here when defendants had no indication or no suggestion to miss the r l threatened officer goodman riper or intended to use that information for anything other than to report the news there any dispute that this is a totally voluntary conversation on both sides and that's not finding a clearly established st amendment right and under tending that error is the district court glossed over the supreme court's decision and the daily mail there the supreme court held that the state could not attorney for information about the crime those sources revealed the name of the juvenile murder suspect which the newspaper published in the court held that because those reporters lawfully obtained the information that the state could not punish the newspaper and what's important about the daily mail a whole is the court said that whether or not the government officially released the information was not controlling because the journalists their usual routine were for porting techniques i e asking a government official for facts and that was always a lawful you're saying information so staling mel tells us and we're told the routine reasonable officer here that he could not punish mysterio for simply asking an officer for information in the course of accurately reporting the news that alone shows why defendants have no qualified immunity here and this is a st amendment case often the qualified immunity front so we struggle to find cases with analogous facts we have one here with daily mail so i would urge the court to find the daily mail alone establishes why defendants have been qualified immunity but even then if you move on to other cases like the forest our case again there to supreme court held that the government cannot punish the recipient someone who receives information on the course of reporting the news when the government itself is the source of disseminating that information sole basis for probable for probable cause finding or part of the basis for local cause finding a court should assess whether or not that speech is protected and how it impacts the probable cause analysis instead a district court here simply jumps into an cite several cases finding that where sect a speech or another right was the sole basis for an arrest in a reasonable officer would understand that it's unreasonable to enforce the statute even if it's on the books look at the better the robinson and the sample be lariam cases from the six circuit those court those cases i think provide a great guidance on why qualified immunity is not available to defendants here appeals here in texas held that grand jury secret testimony did not apply under that statute and show it could not be good force the only other two cases are those that defended the rayna case and the to well case  information in the government's possession or corrupting a list of purposes in ten well you had a county prosecutor who used information the government's possession to go after two whistleblowers and then arraigned you have a  government official use information to essentially engage in bittering those are the purposes of a thirty nine o six and so reasonable officer even knowing those cases would understand and that would force in his mind the thirty nine  move on your own nurse to the district courts dismissal of miss the overall selective enforcement point in this turns on to the allegations long as you just mentioned judge graves the fact that no local official supreme court made clear in the room the united states case that even though probable cause is a deterministic for th amendment claim it cannot it does not prevent a selective enforcement equal protection claim from going for that she was similarly situated other local media who routinely ask for and receive information from local law enforcement that's enough to establish a similarly situated class the single difference being that she engaged in a style of journalism those others didn't and that's why they singled her out so we would urge the court to reverse the the district court's dismissal of the serial sex selective enforcement point and i would urge the court also to look at deliberate orchestrated investigation to target her simply for news gathering and reporting the other journalists to every day when it cost us to tional byelection results from  situated similarly situated would be journalist who had collected information from a government official and then and then publish that information and i guess it would have to be from where he asks he tells courts to apply this selective enforcement type analysis commonsensical i think it's very common sense that journalists everywhere simply ask government officials obvious violations but it's as close as it gets there is this is routine journalism asking government sources for facts or happily what they reveal just going back to my my earlier point this is a deliberate act there is no police department against miss fia ryall for publication our speech the conduct that was penalize not by the officers not they didn't make the crime is described in that's done as i mentioned at the texas public information act and the reason that's important your honor is because that act not only defines the scope of publication of city records of public records but also those that it must be hell confidential and not disclosed specifically an area private information system as read and you agree that its citizens have a right to solicit from a public servants information typically yes in some circumstances that you know would seem to me is on its face unconstitutional you have a st amendment right to sell it as a citizen to solicit information from a public official to solicit the information except in the case where you know or understand that solicitation is for private information that formation i'm not saying it must be with government officials to respond i'm just saying kind of public kind of citizen ask a public official a question well they most certainly can however the right to of that information which is prescribed by that state statute is not unlimited and that's because obviously privacy rights are involved governmental entities hope documents and records information solicitation receipt of that information for personal benefit understanding that that request could result in divulging private ip or private information that violates individual rights not held by the government that are owned by that there is a problem so yes of course broadly anyone can ask anyone a question and but and there is some is issue in this case about him improper release of information by someone not authorized to do so less because the government entity holds much information that is if disclosed that would have disclosed what privacy rights so you're saying the citizen has the right to ask certainly but only so long as that information is already public you know if the information could be off could be lawfully would ok but it certainly there's no chance well the difference is that if you solicit or and receive information that deals of personal benefit as the statute describes and if that term is used in the texas penal code it could an unlawful disclosure of private information that would violate the statute remember the work and so forth so we and so you're saying the officers were aware of that because what we're talking about here if they needed to have probable cause for this the rest correct based on this statu pleadings do not say that they weren't her benefited gani as she got sponsorships from her face there were benefits that she played in her pleading to that effect yes you're on no no no no no i'm talking to you now about what you told me the office and you knew the time they got their response what did they know about the benefit well i don't have of the information on their investigation but they did know that some benefit had been received by her and it's a personal benefit that they don't know did they know what it was they didn't know all the well no it does not because remember what what's published here is not the publication it's the receipt and solicitation internal is asked questions of public officials all the time certainly they do so is important to distinguish the type of information being sought this was private information that the government held but it's not related to operation of the police department it's not related to an investigation of how the city functions or decision granting their motion to dismiss as mystere reale has failed to state a claim that could overcome their entitlement to qualified immunity and i think i want to be there are some aspects that i'd certainly agree with mr mc me on here that this case certainly does not revolve around the publication of information and specifically the facts that have been pledged so far in the case this was that at one thousand two hundred and thirty six motion to dismiss by the district attorney in the chief district attorney based not only on their absolute immunity but then as the court ruled their entitlement to qualified immunity when you do it look at the very facts that have been pled and do the fact and sense of analysis and as the court did i mean that's a fifty nine page order in this case where the district court reviewed all the facts that have been played and before the court and determined that they weren't toddled to qualified immunity the facts are officers brought to them for review for the statutory compliance and the elements necessary for that and again as mr mccain he said thirty nine point zero six is a statute a state statute in the penal code that deals with the misuse of official information and i believe mr morris mentioned part am part b which are the criminal aspect that falls on public service for the misuse of official information but part c the statute that was reviewed by the d a and the assistant district attorney deals with that person soliciting and receiving the public information and i agree judge joe when you were asking some specific questions about the use of the statute i think you have to look at every element of the statute because it requires multiple things the st thing it requires is that a person that's not a public servant any person commits this off and if they solicit or receive from a public servant certain information and it's with that intent to either defraud another person to harm another person or for them themselves to receive some sort of be times it's under see it says a person commits an offense if with intent to obtain a benefit or with intent to harm or defraud another he is out what's at issue in this case not to defraud section no but but it's the up to obtain a benefit and then you go to the parts that mr mccain he specifically spoke about is that the public servant had access by means of his office to search or her office to certain information intent behind it and the purpose for what was done and i think you mentioned and mr morsi really intend is to obtain information so that they can broadcast it to the public and to their miring compensation for being an aggressive realises that she is a journalist who receives a salary from a newspaper organization or a television station or even independently receives a salary the benefit here that she receives is that reporter who is on payroll of a newspaper outlet i guess that is this case different in any other way or is that your only way it's different it's different in several other ways and i'll give you  examples too and that's where i think you have to go back to just specific language of thirty nine point zero six and the facts of this case that have been pledged so far it also has the element that requires information that has not been made public and it specifically defined as that as information to which the public does not generally have access to that is prohibited from disclosure under chapter fifty two of the government code which is the texas public information that and here at the court did an  distinction that you're drawing is it's information that is not public that doesn't distinguish ordinary journalistic practice journalists asked for nonpublic information all the time not for her collecting a salary that's not the argument that the benefit collects a salary it's not an argument but i think your only argument of this think how this is different from a journalism case is this person is not paid the way be normally expected or wants to be  a that's i think your main argument is not your only argument well and i think that she pled herself and her complaint up side of the record on the pill one hundred and seventy one where she alleges that the only thing that was in the search warrant affidavit and again this is not my client mr all of these are missed after a man was at this is the defendant ruiz was that he put in there the release of the information before other sources gained her popularity on her facebook page so i mean that's the only benefit he's alleging so far and that's the only benefit that was before the court and that's where i think you have to go through what she actually alleged against my clients would use during that if you're allowed to publish the pen yes but that's a question of them that's really not public information but but then there's a process that that goes through it what the intent of it and that's a different situation we're not looking at the same statutory provision here papers and if there is a statute in place the answer to that is guess that someone can call someone up and ask that the the specific statute in place here if a same or similar statute was in place distinctions as it is just the court has a very good job in its fifty nine page order pointing out the only time mr all on nice and miss jackman are even mentioned and their involvement in this case it's very very general conclusory fake allegations there are no specific that gives them other than the little retaliatory thing that the court specifically addresses and that and that's to address the st amendment the rest is just this broad sweeping defendants did this that without any explanation or factual allegations about either one of my clients i'm not my thomas i'll just say for those reasons and the reasons based not only in our briefs and in the district court's order mr advertising to even free meals for journalistic efforts one would assume they would have put in the rest for they did the only thing they put in the arrest warrant was that she released this information to scoop other journalists that's not a crime spree course made that clear even if she did receive benefits even if they were known about that penalize in receiving some financial gain for publishing the news but opened every single journalist up to promote criminal prosecution across the country finally your honour's the fact that the information was in the government's possession of my the thing considered private does not give packed the criminalization of journalism here this statute criminalizes journalism the core function of the press is to go out and find nonpublic information to bring it to light and inform the public if the government could force the press and any other person looking for information to