If We Unsealed the Brief, You Might Talk About It

Last week New York Times legal writer Adam Liptak noted the bizarre pseudo-secrecy enshrouding the First Amendment case brought by pain treatment activist Siobhan Reynolds. As I explained two weeks ago, Reynolds is challenging a grand jury investigation stemming from her advocacy on behalf of Kansas pain doctor Stephen Schneider and his wife, Linda. This week the Supreme Court may decide whether to hear her appeal. In the meantime, it has permitted her to share an expurgated version of her petition (PDF), but all other documents in the case remain sealed—including the amicus brief filed on her behalf by the Institute for Justice and the Reason Foundation (publisher of this website and Reason magazine). Liptak opens his column by describing the peculiar position in which this court-ordered concealment puts Reynolds' supporters:

Last week, I asked a lawyer from a libertarian group for a copy of a brief it had filed in a First Amendment case. Sounding frustrated and incredulous, he said a federal appeals court had sealed the brief and forbidden its distribution.

"It's a profound problem," said the lawyer, Paul M. Sherman, with the Institute for Justice. "We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments."

Liptak, who has seen part of the secret 10th Circuit order that keeps the amicus brief sealed, says one reason the appeals court gave for its decision is that allowing distribution of the brief would help I.J. and Reason publicly make their case that Reynolds is being persecuted for exercising her First Amendment rights. One of their goals, the Court said, "is clearly to discuss in public amici's agenda." Obviously, we can't have that.

It bears emphasizing that the I.J./Reason brief is based entirely on publicly available information. It does not divulge any confidential grand jury information, protection of which is the rationale for sealing the documents related to Reynolds' case. The only purpose served by sealing it is to make talking about the case harder.

Discouraging public dissent, of course, is how this case got started. Tanya Treadway, the assistant U.S. attorney who prosecuted Stephen and Linda Schneider, was so irked by Reynolds' public defenses of the couple that she unsuccessfully sought a gag order telling Reynolds to shut up. Later Treadway initiated a grand jury investigation that resulted in subpoenas demanding documents related to Reynolds' activism as head if the Pain Relief Network (PRN), including a Wichita billboard defending the Schneiders and a PRN documentary about the conflict between drug control and pain control. Those subpoenas, supposedly aimed at finding evidence of obstruction of justice, are the subject of Reynolds' First Amendment challenge.

Even Monti Belot, the judge who turned down Treadway's request for an order silencing Reynolds,  ultimately could not contain his irritation at her outspokenness. Three weeks ago, when he imposed what amount to life sentences on the Schneiders, he went off on an extraordinary tirade (PDF) against Reynolds and PRN, neither of which was a party to the case:

There is one aspect of deterrence I hope this case achieves and that is to curtail or stop the activities of the Bozo the Clown outfit known as the Pain Control Network [sic], a ship of fools if there ever was one. A ship of fools is an allegory in Western literature which depicts a ship with deranged passengers without a pilot who are seemingly ignorant of their own direction. When persons leading or involved in an organization such as the Pain Control Network [sic] are so stupid that they support what occurred in this case, they demean the efforts of legitimate medical providers to help persons suffering from chronic pain.

Is Belot really saying that one function of the heavy sentences imposed on the Schneiders is to deter Reynolds and like-minded activists from speaking out against such prosecutions in the future? That's certainly what it sounds like. Reynolds seems to have a real talent for getting under the skin of people in power. But that is not a crime—or at least it shouldn't be.