Drug War

A First Amendment Case You Can't Talk About

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Last week Kansas physician Stephen Schneider and his wife, Linda, who worked as a nurse in his practice, were sentenced to 30 and 33 years, respectively, for painkiller prescriptions the Drug Enforcement Administration considered inappropriate. Also last week, the Supreme Court let Siobhan Reynolds, a pain treatment activist who argued that the Schneiders were railroaded, share the petition (PDF) in which she seeks a hearing for her First Amendment challenge to a vindictive intimidation campaign waged against her by Tanya Treadway, the assistant U.S. attorney who prosecuted the Schneiders. Reynolds, founder of the Pain Relief Network (PRN), needed permission to share her own Supreme Court petition because the entire case—including the district court decision, the appeals court ruling upholding it, the briefs submitted by both sides, and even the amicus briefs filed in support of Reynolds—has been sealed. Hence my headline exaggerates only slightly: This is a First Amendment case in which all the key documents are secret.

The case has been sealed because it grew out of a grand jury investigation of Reynolds that Treadway instigated because she was irritated by Reynolds' advocacy on behalf of the Schneiders. Supposedly looking for evidence of obstruction of justice, Treadway obtained subpoenas that demanded, among other things, communications between Reynolds and the Schneiders, a PRN-produced video on the conflict between drug control and pain control, and documents related to a PRN-sponsored billboard in Wichita that proclaimed, "Dr. Schneider never killed anyone." This investigation followed Treadway's unsuccessful attempt to obtain a gag order prohibiting Reynolds from talking about the Schneiders' case.

Reynolds unsuccessfully challenged the subpoenas on First Amendment grounds in the U.S. District Court for the District of Kansas, then appealed that decision to the U.S. Court of Appeals for the 10th Circuit. At that point, the Reason Foundation (which publishes this website as well as Reason magazine) and the Institute for Justice filed an amicus brief on her behalf. The 10th Circuit ruled against Reynolds in April, and she was hit with daily contempt fines that she and her organization paid until they ran out of money last summer, at which point she surrendered the material that Treadway wanted rather than go to jail. Now she is asking the Supreme Court to clarify how the First Amendment constrains grand jury subpoenas, including the standards for determining when an investigation is a good-faith effort to find evidence of a crime (as opposed to, say, a vendetta against a critic) and when it is permissible to demand material that implicates freedom of speech. The petition, prepared by First Amendment specialist Robert Corn-Revere, also asks the Court to consider the extraordinary secrecy surrounding this case, which has proceeded all the way to the highest court without a published opinion or publicly available briefs.

This level of secrecy, which the Associated Press says "has alarmed First Amendment supporters" who see it as "highly unusual" and "patently wrong," is clearly not justified by the need to protect the confidentiality of grand jury proceedings. The 10th Circuit decided to seal even the Reason/I.J. amicus brief, which is based entirely on publicly available information. More generally, the gist of the case could have been discussed without revealing grand jury material, as Reynolds' Supreme Court petition shows. Although the court-ordered redactions make the 10th Circuit's reasoning as described in the petition hard to follow at times, the details generally can be filled in with information that has been reported in the press (which shows how silly the pretense of secrecy is). Furthermore, one of the main justifications for grand jury secrecy—that it protects innocent people who are investigated but never charged—does not apply in a case like this, where the target of the investigation wants more openness and it's the government that is trying to hide information. As Corn-Revere argues, such secrecy turns the intended role of the grand jury on its head, making it an instrument of oppression instead of a bulwark against it.

I discussed Treadway's vendetta against Reynolds in a 2009 column. I noted the Schneiders' convictions in June. I'd like to show you the Reason/I.J. brief defending Reynolds' First Amendment rights, but I'm not allowed to!

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  1. I had to check the byline halfway through this post to make sure it wasn’t Radley.

    Quite a nut-sacking this one is.

  2. Fucking statists. They pay lip service to the Bill of Rights all the time, but deep down they must have a burning hatred of it and the men who created it. After all, it was designed to protect individual rights not from individuals, corporations, or foreign governments. It was designed to protect individual rights from the U.S. government. Only crazy anti-government wackos would think of that!

  3. So what are the Feds trying to hide – how goddamned corrupt they are?

    1. It appears that the answers to your questions are:
      – damned-near everything
      – totally

      Fuck…

    2. The Federal, State, and Local governments are illegitimate.

      next?

  4. We will tell you what the charges are after you have been sentenced.

  5. How many years did Speer get?

    1. If you mean Albert, then at least 10 years less than these people got for prescribing medication.

  6. I’m so glad that the courts have such respect for the 1st Amendment.

  7. Yeah, Jacob, about this blog post. . . . You’re in contempt of court! Report to jail.

    1. That’s “Go directly to jail”, dumbass!

  8. The right of the people to speak freely, using their unamplified voice in a public square of the government’s choosing, shall not be infringed.

    1. Unless they’re speaking to a federal judge or a cop.

  9. Was considering a move to KS – I’m afraid I’ll need to take a closer look at the government in this state before I get too much further in the process.

    “Sorry, Mr. Potential-New-Employer – Job sounds great, pay and bennies on the nose, we like the area…but they conduct secret trials for shit that should be non-criminal and lock people away forever. So we’re not gonna be in Kansas any more. Good luck finding another candidate…”

    And fuck you, Tanya Treadway.

    1. If I read the article correctly, Treadway is a federal prosecutor. This could have happened in any state.

      1. But it DID happen in Kansas. This shit goes right to the top, I tell you!

  10. Tanya Treadway “seals” sheep.

    1. With gusto, one should add.

      1. Yeah, dance right close to that flame there – considering that Tanya’s record of association with a variety of farm animals is sealed, rumor has it.

  11. As a physician this makes me sick. We get told all the time that we don’t properly appreciate the pain our patients are in and how we should give them the pain medications they need. Of course if you do that, you get thrown in jail under laws designed to lock up drug kingpins. Screw it. Straight Tylenol for everybody.

    1. Were you in the service? Tylenol seems to be the only prescription military doctors know how to fill…

      1. And a light duty chit. Don’t forget the light duty chit.

        1. There was once. Then someone took over and now it’s only about war documents.

          1. I fail at answering.

        2. I’m convinced that the light duty chit is a myth. I never could get one no matter how sick I was.

    2. Does the AMA ever stand up for their members? You’d think physicians in this country would have some political clout.

      1. Does the AMA ever stand up for their members?

        Why, because the AMA is bothered by a decrease in the supply of doctors?

  12. “I’d like to show you the Reason/I.J. brief defending Reynolds’ First Amendment rights, but I’m not allowed to!”

    Gosh, if only there was some sort of website where you could leak stuff like that…maybe some kind of wiki or something…

    1. There was once. Then someone took over and now it’s only about war documents.

      1. Yeah, what’s up with that? And search doesn’t work on any of the mirrors I’ve found.

  13. If we medicalize marijuana, this will never happen again.

  14. I’m hoping Thomas write the majority opinion ripping new ones up and down the federal judiciary food chain.

    1. Majority? If there’s one thing the New Professionalism wing and the Wise Latina wing can agree on it’s that prosecutors need more leeway.

      Thomas is likely to vote against, along with (maybe) Ginsburg. Everyone else is a doubtful.

      1. Ahem. Melendez-Diaz v. Massachusetts pissed the hell out of prosecutors by getting rid of their “leeway” of getting labwork done by people who couldn’t be forced to testify.

  15. Oh, wikileaks!

    Oh, wikileaks!

    Where for art thou, wikileaks!

  16. And of course:

    Acting Solicitor General Neal Kumar Katyal has opposed unsealing the case or even making her full petition to the Supreme Court available.

    Neal Katyal was the lead counsel for the detainees in Hamdan vs. Rumsfield.

    But of course now that President Obama and his team is in charge, there’s no need to worry about civil liberties at all!

    1. Ya because soon we will not have any!

  17. Keep it classy SCOTUS. I’d hate to be outdone by North Korea or Saudia Arabia.

  18. One of the exact reasons I’m slowly moving from the “conservative that leans libertarian” title to full on Rothbard anarcho capitalist.

    1. Yeah, it’s a pretty easy road to take. Balko’s regular nutpunches help a lot too. I thought the anarchists were crazy for a long time, but stuff like this makes the minarchists look insane for allowing the state to have a monopoly on the justice and legal system.

      1. It’s good to see you guys coming to your senses. Philosophically, anarcho-capitalism is the only system that makes sense, because no matter how small your government starts out, it will, inevitably and inexorably, grow. And grow. Until it becomes a monster. And then where are you?

        1. Oh, that’s rich. An anarchist worried about practical problems that slowly develop under a minarchist system.

          Every time I bring up the fact that anarchy is likely to be quickly replaced by the worst sort of dictatorship, the anarchos claim we shouldn’t be deterred by practical problems. What’s good for the gosling is good for the gander, honkies.

          1. Are you that unimaginative that you can’t imagine life without some governing body telling you what to do? Anarchy doesn’t mean lack of order, it means no rulers.

            And democracies almost ALWAYS turn into dictatorships.

            1. I know what anarchy means. The problem is — among other things — that there is no mechanism in an anarchist system that prevents the emergence of a government-like entity that tells people what to do and threatens force if they don’t obey.

              Given the natural tendency of humans to crave power and/or follow the leader (the exact same dichotomy that erodes minarchy), your anarchy is going to morph into a dictatorship almost immediately.

              1. Just because you want it to be that way doesn’t make it so, authority lover. Seeing as there have been functioning anarchistic societies on this Earth before, buddy, your argument doesn’t hold water.

                1. there have been functioning anarchistic societies on this Earth before

                  …such as?

                  I trust you’re not going to use Somalia as an example. The other go-to example for anarchists is Saga Iceland, which functioned so well that Icelanders begged the king of Norway to take over their island.

                  1. Iceland lasted longer as under anarchy than the US has as whatever the system we pretend to have is.

              2. Given the natural tendency of humans to crave power and/or follow the leader (the exact same dichotomy that erodes minarchy)

                I love your logic here.

                A) People want power and control
                B) If they get power and control they will use it to hurt other people
                C) Therefore we need to give a body power and control to stop this from happening

                1. It’s the same reason why, even though it’s usually a good idea to keep germs away from your body, you don’t want to destroy the “good” bacteria living in your intestines and in your skin pores in the name of being germ-free. You’re never going to be able to keep bacteria out of those places permanently, and the presence of relatively harmless strains is preventing the truly nasty types from moving in.

              3. And also, your premise is false. It’s almost the exact same argument liberals use when confronted with concealed carry laws. Chaos! Shooting! People are bad and evil! Most people don’t inflict violence on other people just because they can. If that were the case, there is certainly nothing the government could do to stop it from happening.

                1. Unless they get to wear really cool SWAT gear, and drive an APC through the ‘burbs to their next takedown.

                2. Concealed carry permits are hardly comparable to anarchy, considering how tightly regulated the process of obtaining such a permit is.

                  In an anarchist society, all you need is a small minority of wannabe dictators to destroy the system.

                  1. In an anarchist society, those wanna-be dictators would have to deal with the majority, instead of buying political protection from the ruling class.

        2. It really is the best and most uncompromising position to argue from, while still being inclusive to other views. (Want to live in a communist vegan co-op ruled by matriarch? Go ahead, just as long as it’s voluntary and it doesn’t force me to join or pay for it). And you get to hate on the big government-connected corps which scores you points with the lefty chicks. Anarcho-capitalism has better arguments for leftist views than most leftists.

      2. stuff like this makes the minarchists look insane for allowing the state to have a monopoly on the justice and legal system

        In an anarcho-capitalist system, if Ms Reynolds made a habit of speaking out against the most powerful “justice corporation” around, let’s just say she wouldn’t be able to get a life insurance policy.

        The places where there has been no functioning government in recorded history have been absolute shitholes, however much anarchists like to deny that, well, every example of anarchy in practice wasn’t “real” anarchy. Not to say that governments haven’t presided over (and created) shitholes themselves, but the bad track record of archist societies is still better than the awful track record of anarchist ones.

        1. Please, which anarchist societies have an awful track record? Somalia? It’s a battle between warlords trying to establish territorial control. That is inherently archist.

          You confuse government as being some organization with shiny white buildings and uniforms that serve you.

          FYI the Frontier West is an example of a close-to anarchist system, and it was far from a violent shithole.

          1. Not sure the Native Americans would agree with that characterization, but in any case you’re talking about an extremely sparsely populated area. Once the population started increasing you got “hanging judges” and the like who illustrate my point about dictatorship following anarchy quite well.

          2. Thanks for illustrating my point about anarchists and anarchist sympathizers indulging heavily in the No True Scotsman fallacy.

          3. It’s a battle between warlords trying to establish territorial control.

            And what you makes you think the same dynamic would not rapidly develop absent a government?

            Gangs battling for control is the face of anarchy.

      3. A functional justice system is going to have to be coercive — no way around that. Attempts to deny that lead to ludicrous positions like Epi’s the other day that criminals should be able to choose who prosecutes them.

        And competition in coercion is NOT a good thing. At best it replaces one oppressor with several.

        1. Your choice between oppressors is laughable. Our system was set up to limit the power of oppressors – our problems stem from usurpation of that power, not a failure to recognize it.

  19. The System Works!

  20. It’s too late to work within the system, and too early to start shooting the motherfuckers.

  21. More government is better government.

    1. This is what more Government is! read it http://ow.ly/2XZTE

  22. One of the Amicus briefs for this case is on wikileaks in pdf format. I can’t remember where it is I will find it. I uploaded it after it was removed from reason.com’s page.

    1. Well I guess wikileaks only hosts things that are about the war, because the file isn’t there any more fuck em. Here is one of the amicus briefs: http://www.scribd.com/doc/40381296/12603816004025

      1. By the way, the link above is the Reason Foundation and Institute for Justice amicus brief.

  23. Before making these people into heroes, you might want to read the KC paper article summarizing what they were convicted of. The billboard is inaccurate.

  24. Two separate issues here.

    If Schneider was over-prescribing, the Kansas Medical Board should have noticed and pulled his license. That would have been an appropriate civil action to end his career as a pain doc. It became a criminal case only because some patients died and their families complained. That’s what brought in the DEA, “…full of zeal but without understanding”, Justice Brandeis would have said. These meds have to be potent in order to work. Without them patients become desperate, always looking forward to shorter lives, often to the point of suicide. Siobhan Reynolds knows that on a first person basis.

    The second issue — the subject of Sullum’s column — is the First Amendment. The DEA has so much power they can shut up almost anybody they want, and get the courts to agree with them. In effect, the courts are becoming an arm of the DOJ, a truly dangerous trend.

    Siobhan may seem like a pain in the ass to the enforcers, but she performs an important service to the pain patients. Without her intervention, for instance, Richard Paey (google that name) would still be in a Florida prison in his wheelchair.

  25. Welcome to America.

    The first rule of the First Amendment: You do not talk about the First Amendment.

    The second rule of the First Amendment: You DO NOT talk about the First Amendment.

    Third rule of the First Amendment: if someone yells “stop!”, your rights are over.

    Fourth rule: Any more than two people, you need a license to speak.

    Fifth rule: Only one side of the debate can be abridged at a time, fellas.

    Sixth rule: Anything involving no shirts, the majority, or weapons is not covered.

    Seventh rule: Rights will be abridged as long as they have to.

    And the eighth and final rule: if this is your first time having your rights abridged, you have to fight.

  26. Leak the info anonymously to Wikileaks then!

  27. From the WashPost article: “A 2006 investigation by the AP found more than 5,000 people were prosecuted secretly in federal courts between 2003 and 2005, most involving drug-related conspiracies. But Dalglish, whose group did a similar study of federal cases in Washington, said few secret ones reached the Supreme Court.”

    “Most involving drug-related conspiracies”! Why haven’t we heard more about this? Unbelievable. We have let them ruin our country; it’s a done-deal. I can’t imagine the shite our kids will have to endure because of our timidity, myopia, gullibility, prejudice, and outright cowardice. Curse the Treadways of this country.

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