Drug War

If We Unsealed the Brief, You Might Talk About It

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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.

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  1. the secret 10th Circuit order

    That, right there, is completely unacceptable in any society that claims to be based on the rule of law.

    There should be no such thing, ever, as a secret court order. Period.

    Any judge who approves such an order should be removed from office, barred from any future office, and disbarred. Such a person clearly has no clue whatsoever about what the rule of law means, and cannot be trusted with any part of its administration.

    1. You can make a case that in cases involving national security, sealing records from the public is unfortunately necessary.

      This is not such a case. This is a case about prosecuting doctors and a group defending those doctors in public. The whole thing stinks to high heaven.

      1. You can make a case that in cases involving national security, sealing records from the public is unfortunately necessary.

        Or sealing the accident reports from a plane crash that implicates the USAF in neglect…

    2. I mean, I can see the argument for “ok, this classified nuclear secret or military plans can’t actually be published.” But for this? For publicly available data? About someone accused of giving someone more painkillers than the government wanted?

    3. Serious question, how does a “secret court order” differ than the infamous “national security letters”? Are they not fundamentally the same?

      1. Hypothetically, a National Security Letter is supposed to be about National Security, but that’s obviously ripe for abuse.

        They’re also similar in that no one really cares about either unless a Republican is President (the gag order for NSLs dates back to its creation in 1978), and especially if the AG is a Pentecostal.

      1. link’d

        An ever-relevant essay, it was significant in my conversion from libertarian to anarchist.

    4. I can see a court sealing evidence, such as your super-duper secret nukular plans or whatever.

      But this is a secret order. If courts can issue secret orders, then legislatures can pass secret laws, agencies can pass secret regulations, and so forth.

      You cannot have a government of laws/rule of law, unless any and all laws are public.

      1. If the plans for Newcular Titties? are ever revealed, we are all doomed.

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

  3. We need some kind of SUPREME law, a law of laws, enshrined as the Supreme law of the land, that encompases the heart and soul of what this country means…that says that we can say whatever we want, that free people cannot be censored, that gubermint cannot operate in secret,…

    nah, a law like that would never happen…

    1. I’ve got the supreme law. It’s called my AK.

  4. 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.

    Denying First Amendment rights is a GREAT way to convince people that you’re not denying First Amendment rights.

    I’m waiting for the court order forbidding journalists from writing about the sealed briefs.

    1. I’m waiting for the court order forbidding journalists from writing about the sealed briefs.

      Journalists: Freedom of speech carries great responsibility.

      1. Like the responsibility to shut up when we tell you to?

        1. Err…not always.

  5. Reason and the Institute for Justice’s amicus brief: http://www.scribd.com/doc/40381296/12603816004025

  6. What we need is a court of trusted celebrities who make decisions about secret stuff that common folk need not concern their little heads about. A Star Chamber, if you will.

    1. I volunteer.

    2. As do I.

      1. Matt Damon

        1. Sorry, it’s by invitation only. If David Bowie shows up and asks you, you’re in. Otherwise, you’re little people.

          1. “Pay no attention to the handsome and ageless rockstar hiding behind the couch.”

            1. His powers are immense.

    3. I’ll chair the committee.

    4. Will Hal Holbrook be on it?

      1. Naturally. In his Mark Twain outfit.

        1. Michael Douglass and his haircut will be on it too.

        2. Why do you have to ruin everything?

          1. You hate Mark Twain? That’s evil.

            1. Have I ever claimed to be anything but?

              And I don’t hate Samuel Langhorne Clemens, I hate people pretending to be him. Especially the guy on ST:TNG.

              1. Wasn’t that the worst? I saw that episode mentioned as one of their Top Ten ever–nuts. I didn’t like that one at all. Then again, I’m not fond of most of the time travel episodes.

                I saw Holbrook doing his Twain bit live. I thought he was pretty good.

                1. The only thing worse than the TNG Mark Twain stuff was…Wesley. Why couldn’t Worf have just ripped his head off?

                  1. He did. You know he did. On Picard’s orders. The FCC forced the show to hide that fact due to child labor laws.

                    1. No, he didn’t. You just want it to be true, so you tell yourself these things, but I’m a realist. I can’t just wish that hard for something and assume it came true.

                    2. Has it ever occurred to you that we’re in parallel universes?

                  2. I always hated the Klingon-themed episodes.

                    1. The Klingon episodes were collectivist, tribal, authoritarian, and pretty much all-around obnoxious. The fact that they were so popular amazes me. I was sitting there going “why do people like this so much”?

                    2. The appeal of Klingons is the appeal that all honor-based militant cultures have for dweebs: They get to think that modern American culture made them the pathetic creatures they are; in Klingon/Feudal Japan/Medieval Europe their martial genius wouldn’t have been wasted.

                      The worst recurring Star Trek culture was the Ferengi. We get it Berman, the little Space Jews are disgusting. We hear you loud and clear.

                    3. The antisemitism was a red herring. “Ferengi” likely derives from the Arabic word for Europeans (literally, Franks), so it was actually hate towards capitalists of European extraction. Like Americans.

              2. Kirk! Help me, Kirk! Help me!

                1. I am Kirok!

  7. That barmy arsehole can sit it out.

  8. Somebody should send the brief to Wikileaks and see if they’ll publish it, or whether it doesn’t fit their agenda.

  9. just put it on the pirate bay

  10. Said it last time this case came up, and I’ll say it again.

    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 have rights 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.

    1. You’ve got it all wrong, mate:

      Rule #1) NO POOFTAHS!

      Rule #2) I don’t wanna catch anybody not drinking

      Rule #3) NOOOOO POOFTAHS

      Rule

  11. Have you considered a direct lawsuit under the Civil Rights Act. This would seam to be a case of direct violation of constitutional rights, something you can claim very large damages for in federal court.

  12. New Downfall:

    http://www.youtube.com/watch?v…..r_embedded

  13. This just makes me queasy. Big time. Nothing additional to add – you’ve all covered it.

    Ima go throw up now….

  14. Isn’t this what wikileaks is for?

    1. No, I’m pretty sure wikileaks is for stroking Julian Assange’s [sp?] ego. It just happened to perform the valuable service of showing how much utter dreck is classified by default in the meantime.

    2. The Reason/Institute for Justice amicus brief used to be hosted on wikileaks, but not anymore. Once the war leaks came out they got rid of everything. Please spread the brief like herpes: http://www.scribd.com/doc/40381296/12603816004025

    3. The Reason/Institute for Justice amicus brief used to be hosted on wikileaks, but not anymore. Once the war leaks came out they got rid of everything. Please spread the brief like herpes: http://www.scribd.com/doc/40381296/12603816004025

  15. The only things redacted from the filing seem to be court findings. “The court finds that _____________ and __________.” and “The 10th circuit orders that ______________________.”

    So she’s alleging that a prosecutor used the grand jury subpoena power to silence criticism. Then the court rules something (which must have supported the prosecutor, else we wouldn’t still be talking about this). But they won’t even let the public know what issues they decided, let alone what the decision was.

    This has implications far beyond ordinary free speech. The court has declared itself (and prosecutors using the grand jury) as completely beyond criticism. Not above criticism, but literally uncriticizeable. Like some magic spell from Harry Potter, we are physically unable to criticize the court. Even any mention of the fact that the court can’t be criticized is redacted from the record as if it never existed. I think judge Belot speaks for the entire judiciary as he randomly issues a sideswipe at Reynolds and her advocacy group. The anger in his finding is clearly motivated by the notion that anyone dare to question his findings. He says they “are so stupid that they support what occurred in this case” – as if it we self-evident that the state is correct and only mental derangement could explain any dissent.

    I hope the court will reign itself in – and the prosecution with it. This entire “we have evidence that you are guilty of a crime but we won’t show it to you or anyone else except a secret judge – but you must show us everything about your life because we need it – we just can’t tell you why. Wow. That can’t be America…

  16. 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]

    I have tried to read this as something other than an explicit admission of imposing a sentence with intent to silence the political opposition. And I’ve failed.

    1. Well, you could read it as an invitation by the judge to be tarred and feathered. Other than that, I got nothing.

      1. A barbaric practice, but I am occasionally tempted to suggest resurrecting it.

        Then I sober up.

        But, oh, the daydreams in the mean time…

  17. That activist should wrap all the documents up and send them to Wikileaks. “That’s what I think of your secrecy order!”

    Now, that would be fun to see.

  18. @Rasputin..
    I would never be so stupid as to give them a life saver like that..I resisted a court order. I did not defy them..an important distinction..
    They (the government) have to try to argue from where they currently are..
    Without “evidence” and, if I might say so, without logic..
    I would prefer to let this thing lie..
    Siobhan Reynolds
    Painreliefnetwork.org

  19. Here is the Reason/Institute for Justice Amicus Brief torrent: http://thepiratebay.org/torrent/5956044

  20. This whole thing makes me so angry I am shaking.

    Why did the Supreme Court turn down Ms. Reynolds’s petition? It is outrageous that citizens can’t even turn to the Supreme Court when their Constitutional rights are being denied. I am stunned. Yes, there are SOME on the SC that I don’t respect, but how can Clarence Thomas, one person I thought always stood up for justice and freedom, sit back and allow this?

    What I want to know is “What now?” Where does Ms. Reynolds and the PRN go from here. Do those persecuting her just get away with it? Is this what America has become? If they can do this, how is America any different from the old Soviet Union or Nazi Germany?

    1. “”What I want to know is “What now?” Where does Ms. Reynolds and the PRN go from here. Do those persecuting her just get away with it? Is this what America has become? If they can do this, how is America any different from the old Soviet Union or Nazi Germany?””

      For the most part, usually, yes, they just get away with it. If Reynolds is lucky she will find some strategy that allows her to slowly rebuild her life and slowly, maybe, find vindication, but, unless this case has something else going on, the fast part is over. The rest is a long long process that not too many will be walking with her unless she has some surprises for us.

      We are marching towards a police state.

      To some extent, the government counts on the damage being done while reporters are busy kidding themselves that it is their own good sense, not their association or employment at powerful media entities, that protects them from the same rough government treatment.

      Reynolds appeared to be an isolated easy target because she was an isolated easy target.

      The individual has never had less value or currency in American politics.

      An individual is hardly a thing of dignity at all anymore.

      It’s almost as if we consider them silly rather than brave for speaking without being part of a powerful and protective media entity, or coalition.

      The government definitely loves that we engage in that perception, loves how over the past 20 years or so we, including media entities, have taken to this form of self censorship.

    2. “”What I want to know is “What now?” Where does Ms. Reynolds and the PRN go from here. Do those persecuting her just get away with it? Is this what America has become? If they can do this, how is America any different from the old Soviet Union or Nazi Germany?””

      For the most part, usually, yes, they just get away with it. If Reynolds is lucky she will find some strategy that allows her to slowly rebuild her life and slowly, maybe, find vindication, but, unless this case has something else going on, the fast part is over. The rest is a long long process that not too many will be walking with her unless she has some surprises for us.

      We are marching towards a police state.

      To some extent, the government counts on the damage being done while reporters are busy kidding themselves that it is their own good sense, not their association or employment at powerful media entities, that protects them from the same rough government treatment.

      Reynolds appeared to be an isolated easy target because she was an isolated easy target.

      The individual has never had less value or currency in American politics.

      An individual is hardly a thing of dignity at all anymore.

      It’s almost as if we consider them silly rather than brave for speaking without being part of a powerful and protective media entity, or coalition.

      The government definitely loves that we engage in that perception, loves how over the past 20 years or so we, including media entities, have taken to this form of self censorship.

  21. If Liptak and other reporters had followed the story Reynolds brought to them before she was ever targeted, this may have been prevented.

    The type of DOJ people who pull this kind of almost undisguised persecution of Free Speech, the type that has so nakedly aimed its wrath at Reynolds, tend to monitor the press closely and totally rely on people like Liptak.

    They see a bunch of squirmy elitists like Liptak who refuse to take seriously anyone without ten letters of introduction and an army of named lawyers. Crutches for those who can not evaluate facts and the merits of things because they don’t know how to think

    Even now, Liptak finds it impossible to knock out this article without taking a swipe at Reynolds, which the discerning reader should take as a confession by Liptak that his best isn’t good enough:

    “Ms. Reynolds is in her way quite effective. She seems to have the ability to drive the judicial system nuts.”

    “In her way” right Mr. Liptak.

    This is supposed to make us be understanding as to why Liptak ignored the story before people like Corn Revere cared about it.

    Liptak is a facilitator who didn’t have the guts to touch this until Corn Revere and Lucy Dalglish got involved.

    The government LOVES reporters like that and unfortunately reporters like that are the STATUS QUO. They might as well say they get their marching orders from a handful of media lawyers.

  22. File civil rights cases with international bodies. OAS, UN etc.

    What the court did violates several international agreements protecting civil and human rights.

    Not much teeth to enforce, even ones US has signed onto, but embarrassing nevertheless, when the freest press in the world, the only private industry protected by name in the US Constitution, has to go overseas begging for help.

    Judge Robinson has a journalism degree, but her dad was an intelligence officer, her mom a nurse at DOD., same judge, right? Judge Robinson also has something else, a fanatic streak.

    Surprised at 10th circuit. Sure has changed. Used to be a pretty liberty loving circuit way back.

    what’s most shocking about this is that it appears at first glance to go against some of the oldest and strongest Press cases in US history.

    Clearly its prior restraint, solely for the sake of prior restraint, especially when Reason’s brief drew only on public info and court says outright it’s sealed only to keep Reason and other amicus curiae from doing what they do, foster debate on the issues highlighted in the briefs.

    This forces these organizations to violate their own mission statements, an overreaching and abuse of government power of a kind I have not seen for 100 years by any kind of authority and by the courts, well, just about ever. Not a scholar on these things, but to my knowledge.

    Near v Minnesota? Dead?

  23. File civil rights cases with international bodies. OAS, UN etc.

    What the court did violates several international agreements protecting civil and human rights.

    Not much teeth to enforce, even ones US has signed onto, but embarrassing nevertheless, when the freest press in the world, the only private industry protected by name in the US Constitution, has to go overseas begging for help.

    Judge Robinson has a journalism degree, but her dad was an intelligence officer, her mom a nurse at DOD., same judge, right? Judge Robinson also has something else, a fanatic streak.

    Surprised at 10th circuit. Sure has changed. Used to be a pretty liberty loving circuit way back.

    what’s most shocking about this is that it appears at first glance to go against some of the oldest and strongest Press cases in US history.

    Clearly its prior restraint, solely for the sake of prior restraint, especially when Reason’s brief drew only on public info and court says outright it’s sealed only to keep Reason and other amicus curiae from doing what they do, foster debate on the issues highlighted in the briefs.

    This forces these organizations to violate their own mission statements, an overreaching and abuse of government power of a kind I have not seen for 100 years by any kind of authority and by the courts, well, just about ever. Not a scholar on these things, but to my knowledge.

    Near v Minnesota? Dead?

  24. What judge Belot said, about the ship of fools and so on, is NOT extraordinary.

    Reason obviously hasn’t spent much time in court, or just needs to float the heavy rhetoric.

    Judges going off and being arrogant is the increasing NORM these days.

    What’s worse, is they often ignore the factual record to do so, counting on readers not to dig in to the court record and check them. And they usually don’t notice.

    And they usually have an enormous influence on the press covering the targets of these attacks of theirs, because it usually isn’t an attack on the press as well.

    I could pull a dozen of these from just one district from a period of just, say, two years.

    On the whole, judges are getting more arrogant and less accountable. This process might have been hastened unintentionally by security concerns that separate them from regular people more than ever and by those eager to protect them from crazy attacks on their independence by accusations of being activist (rather than legitimate attacks on them for being prosecutorial jerks dreaming of star chambers)

  25. What judge Belot said, about the ship of fools and so on, is NOT extraordinary.

    Reason obviously hasn’t spent much time in court, or just needs to float the heavy rhetoric.

    Judges going off and being arrogant is the increasing NORM these days.

    What’s worse, is they often ignore the factual record to do so, counting on readers not to dig in to the court record and check them. And they usually don’t notice.

    And they usually have an enormous influence on the press covering the targets of these attacks of theirs, because it usually isn’t an attack on the press as well.

    I could pull a dozen of these from just one district from a period of just, say, two years.

    On the whole, judges are getting more arrogant and less accountable. This process might have been hastened unintentionally by security concerns that separate them from regular people more than ever and by those eager to protect them from crazy attacks on their independence by accusations of being activist (rather than legitimate attacks on them for being prosecutorial jerks dreaming of star chambers)

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