A First Amendment Case You Can't Talk About

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!