This week the Institute for Justice and the Reason Foundation (which publishes Reason magazine and Reason Online) filed a friend-of-the-court brief on behalf of Siobhan Reynolds, the pain treatment activist who is fighting a federal prosecutor's vindictive obstruction-of-justice investigation. As I explained in a September column, Reynolds, president of the Pain Relief Network (PRN), ran afoul of Assistant U.S. Attorney Tanya Treadway by publicly defending Haysville, Kansas, physician Stephen Schneider, whom Treadway is prosecuting on drug charges related to his painkiller prescriptions. After unsuccessfully seeking a gag order to prevent Reynolds from talking about the case, Treadway tried a different tack. She obtained grand jury subpoenas that demanded a wide range of material detailing PRN's efforts on behalf of Schneider and other doctors Reynolds believes have been wrongly accused of running "pill mills." Reynolds refused to comply with the subpoenas on First Amendment grounds and consequently is paying $400 a day in contempt fines. With help from the ACLU, she is asking the U.S. Court of Appeals for the 10th Circuit to overturn the contempt finding and quash the subpoenas.
Because most of the record in the case (including Reynolds' appeal brief) is sealed*, ostensibly to protect the secrecy of grand jury proceedings, it is hard to tell exactly how Treadway thinks Reynolds obstructed justice. But her theory seems to be that Reynolds did so by criticizing the government's case against Schneider and thereby influencing the jury pool—i.e., by exercising her constitutional right to freedom of speech. The "evidence" sought by Treadway includes correspondence related to a billboard defending Schneider and a PRN video about the conflict between drug control and pain control. The I.J./Reason brief argues that forcing PRN to divulge information about its membership, finances, communications, and internal operations "chills speech and burdens the right to engage in anonymous speech and association." It reinforces that point by citing I.J.'s research on the chilling effect of public disclosure requirements. It also argues that a fishing expedition like Treadway's violates the First Amendment right to freedom of association by requiring disclosure of an activist group's political strategies.
*Update: Before I wrote this post, I checked with Geoffrey Michael, the lead attorney on the I.J./Reason brief, to make sure it was OK to make the file available here. He thought that was fine, since the brief did not contain any secret grand jury information. But he has since informed me that the 10th Circuit's clerk says the brief should not be published, which is why it is no longer here. This instruction illustrates the ridiculously broad notion of grand jury secrecy at play in this case, since the amicus brief is based entirely on publicly available information. Scott Michelman, the ACLU attorney who is representing Reynolds, told me he was not allowed to share his U.S. District Court brief opposing the subpoenas, although he was free to reiterate the arguments it contained.