The Chilling Effect of Grand Jury Subpoenas (and Secrecy)
On Monday the Reporters Committee for Freedom of the Press filed a friend-of-the-court brief supporting Siobhan Reynolds' petition for Supreme Court review of the grand jury investigation triggered by her advocacy on behalf of a Kansas doctor and nurse accused of running a "pill mill." Reynolds, founder of the Pain Relief Network (PRN), argued that Stephen and Linda Schneider, who were ultimately convicted and sentenced to long prison terms, were unjustly prosecuted. Her activism irked Tanya Treadway, the assistant U.S. attorney who prosecuted the Schneiders, so much that she sought a court order prohibiting Reynolds from talking about the case. After her request was rejected, she instigated a grand jury investigation of Reynolds that produced subpoenas demanding internal documents related to PRN's advocacy. Reynolds unsuccessfully challenged the subpoenas on First Amendment grounds, and now she wants the Supreme Court to give her arguments a fresh hearing.
In its brief, the Reporters Committee urges the Supreme Court to hear Reynolds' appeal so it can "reconcile conflicts among lower courts as to what standard of review applies to grand jury subpoenas that target expressive activities." It argues that "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." The committee also wants the Court to "provide guidance as to what type of investigation qualifies as one conducted 'in good faith.'" It calls the case "a good example of those rare circumstances justifying court examination of prosecutorial discretion":
From the limited amount of information available from recently unsealed but still heavily redacted pleadings and popular-press coverage of the issue, 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 to its case.
When it was unable to stifle her activities through a prior restraint, the government, in the exercise of its prosecutorial discretion, issued a sprawling grand jury subpoena that had nearly 100 subparts and "sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and Facebook communications (including messages and wall posts) concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the [defendants] and a documentary film called…'The Chilling Effect.'"
Finally, the committee asks the Court to "resolve the conflicting interpretation and practice by this Court and the various courts of appeals regarding their authority to seal entire case files in matters that are ancillary to grand jury proceedings." The committee questions the decision by the U.S. Court of Appeals for the 10th Circuit, which heard Reynolds' case, 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." The secrets zealously guarded by the 10th Circuit include its own reasoning in rejecting Reynolds' First Amendment arguments and an amicus brief in support of Reynolds filed by the Institute for Justice and the Reason Foundation (publisher of this website and Reason magazine).
When the I.J./Reason brief was filed last December, I posted a copy of it after consulting with the lawyers who worked on it. No one imagined that the 10th Circuit would seal a document that people who were not parties to the case and were not privy to any grand jury secrets produced based entirely on publicly available information. But that is what it did. Not wanting to jeopardize Reynolds' case or get the lawyers in trouble, I removed the link to the brief from my post (and indicated at the end of the post that I had done so). But the file remained on our server for almost a year, and unbeknownst to me it could still be located via a web search if you knew what to look for. After an A.P. reporter called this fact to our attention last week, we removed the file from our server—not because we agree with the ridiculously broad order sealing it but because we don't want the court to think that the attorneys who submitted the brief were involved in breaking the seal (which they were not in any way). For the same reason, I am not including a link to the Scribd copy of the brief, which someone (not me) uploaded on October 29. But as A.P. notes, you can now find the pseudo-secret document there.
To compound the absurdity of this situation, the Reporters Committee brief (PDF), available in its entirety on the group's website, contains the same publicly available information about Treadway's vendetta against Reynolds that supposedly renders the I.J./Reason brief unfit for public consumption—information that has been reported in widely distributed A.P. stories, here and in newspapers that carry my syndicated column, and in The New York Times, among other places. But there may be light at the end of this rabbit hole: A.P. reports that the Supreme Court "is expected to take up [Reynolds'] request to unseal the case Friday."
Reynolds' expurgated Supreme Court petition—in which her lawyer, Robert Corn-Revere, makes arguments similar to those offered by the Reporters Committee in its unexpurgated brief—is here (PDF). Previous Reason coverage of the case here.