Chilling Her Softly

The secret silencing of a pain treatment activist


By publicly defending Stephen and Linda Schneider, a Kansas doctor and nurse accused of running a "pill mill," pain treatment activist Siobhan Reynolds irked the prosecutor assigned to the case. Assistant U.S. Attorney Tanya Treadway was so annoyed that in April 2008 she sought a court order telling Reynolds to shut up. Concluding that such an order would be an unconstitutional prior restraint of speech, U.S. District Judge Monti Belot said no.

But by the time Belot sentenced the Schneiders last month, he was so irritated by Reynolds' advocacy on behalf of the couple that he could not contain himself. He said he hoped the harsh sentences—three decades each—would "curtail or stop the activities of the Bozo the Clown outfit known as the Pain [Relief] Network, a ship of fools if there ever was one."

Reynolds, who founded the Pain Relief Network (PRN) in 2003 to highlight the chilling effect of drug law enforcement on the practice of medicine, evidently has a talent for getting under the skin of people in power. But that is not a crime. By treating it as such, Treadway has used grand jury secrecy to cloak an unconstitutional vendetta.

After Treadway failed to obtain a gag order silencing Reynolds, she instigated a grand jury investigation of her for obstruction of justice, obtaining subpoenas that demanded material related to PRN's activism, including its finances, media strategy, and organizational techniques. Among other things, the subpoenas covered communications with the Schneiders, their lawyers, and their patients; a PRN video about the conflict between drug control and pain control; and records regarding a PRN-sponsored billboard in Wichita that proclaimed "Dr. Schneider never killed anyone."

Reynolds unsuccessfully challenged Treadway's fishing expedition on First Amendment grounds in U.S. District Court and the U.S. Court of Appeals for the 10th Circuit, and this week the Supreme Court declined to hear her appeal. Perhaps the Court was impressed by the 10th Circuit's reasoning. We can't judge for ourselves, because the appeals court's decision is sealed, like almost every other document related to Reynolds' case.

The extraordinary secrecy is far broader than necessary to protect the confidentiality of grand jury proceedings, extending even to a friend-of-the-court brief, based entirely on publicly available information, that was filed last December by the Institute for Justice and my employer, the Reason Foundation (which publishes Reason magazine). 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 transparency and the government is trying to hide what it's doing.

In a brief supporting Reynolds' Supreme Court petition, the Reporters Committee for Freedom of the Press questioned the 10th Circuit's decision to "order the complete sealing of a record in which the facts are already publicly known and the traditional grounds for secrecy carry no force." It also urged the Court to clarify the limits that the First Amendment imposes on grand jury subpoenas and the standards for distinguishing a "good faith" investigation from a vindictive campaign of intimidation.

"A strong case can be made that the government tried to silence Siobhan Reynolds' speech not because it suspected her of any criminal wrongdoing but because the prosecution found her troublesome," the group said. "The government should not be able to frighten citizens into refraining from exercising their First Amendment rights of expression, advocacy and association by threatening them with compulsory process—at least not without first satisfying a heightened standard of scrutiny."

Reynolds, who resisted the subpoenas until contempt-of-court fines exhausted her resources and left her organization "in ruins," says "the Supreme Court has decided to participate in the establishment of secret courts that fleece and abuse dissenters at the whim of a disgruntled prosecutor."  Such abuse of the grand jury process turns what is supposed to be a bulwark against arbitrary government power into an instrument of repression.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.