High court won’t hear free-speech challenge to grand jury subpoenas

Tuesday, November 16, 2010

WICHITA, Kan. — The U.S. Supreme Court yesterday rebuffed a subpoena challenge mounted by an outspoken advocate for chronic pain patients who is under a grand jury investigation for possible conspiracy to obstruct justice.

The high court didn’t comment on its refusal to take up the appeal by Siobhan Reynolds. Reynolds sought to quash grand jury subpoenas and overturn a contempt citation issued against her and her organization, the Pain Relief Network, stemming from her refusal to turn over subpoenaed e-mails and other documents.

Her subpoena challenge climbed secretly to the Supreme Court, which last month agreed to make a redacted version of her appeal available while it decided whether to take the case.

Reynolds’ subpoena challenge received widespread attention after The Reporters Committee for Freedom of the Press tried unsuccessfully to intervene in the case.

Lucy Dalglish, the committee’s executive director, said her biggest disappointment with yesterday’s ruling was that the case would have been an opportunity for the Supreme Court to revisit its 1972 ruling in a First Amendment case, Branzburg v. Hayes, and decide what standard of review was appropriate for subpoenas that have the appearance of being issued out of retaliation.

“The U.S. Supreme Court hates subpoena cases, just hates them,” Dalglish said. “There is a very strong belief out there, and it is hard to overcome it because a lot of judges are former prosecutors, … that prosecutors should be given great leeway in determining what they want to go after and this is just another case that demonstrates that.”

The U.S. attorney’s office in Kansas declined to comment on the Supreme Court ruling.

The Reporters Committee had filed a friend-of-the-court brief in the case, urging the high court to “set a standard for determining when prosecutors act in less than ‘good faith’ in subpoenaing witnesses exercising their First Amendment rights.”

“Nearly 40 years ago in a case involving journalists, the U.S. Supreme Court said that while there was no First Amendment-based right to avoid subpoenas related to published news stories, journalists and others engaged in speech might be able to avoid testifying about their reporting if they can show the subpoena was not issued in good faith,” Dalglish was quoted as saying in a story posted last week on the Reporter Committee’s website. “Since Branzburg v. Hayes was decided, the Supreme Court has never laid out the standard they would use in making that determination, so this case would be an outstanding opportunity for them to do so.”

The libertarian groups Institute for Justice and Reason Foundation also supported Reynolds’ case, arguing that the subpoenas against her were nothing more than government retaliation because they were issued by federal prosecutors who had previously tried and failed to obtain a gag order against the woman.

“Here the Assistant U.S. Attorney sought the subpoenas in question after the district court denied the government’s motion to gag. This sequence of facts strongly suggests that the government has issued these subpoenas in direct retaliation for (Reynolds’) political advocacy,” the groups said in a friend-of-the-court brief filed last December with the 10th U.S. Circuit Court of Appeals.

The 10th Circuit sealed the groups’ brief, but the Associated Press obtained a copy after it was anonymously uploaded to the public document-sharing website Scribd last month.

Reynolds came to the attention of prosecutors when she championed the defense of Dr. Stephen Schneider and his wife, Linda, who were convicted earlier this year of a moneymaking conspiracy linked to 68 overdose deaths at a Kansas clinic. Schneider was sentenced to 30 years in prison; his wife received 33 years.

Reynolds believes a federal crackdown on prescription painkillers has left chronic pain patients needlessly suffering. The subpoenas were issued just weeks after she paid for a highway billboard sign proclaiming: “Dr. Schneider never killed anyone.”

Grand jury investigations are by nature confidential. But the ancillary contempt proceedings against Reynolds also were mostly secret. An initial court hearing in Topeka in which she was found in contempt of court was only partially open and the court docket on her case — which includes court rulings, court dates and other information — was sealed at the district court and 10th Circuit.

“What I strenuously objected to was the notion that something like this can make it all the way to the Supreme Court in secret,” Dalglish said. “That just strikes me as wrong.”

David Sellers, a spokesman for the Administrative Office of the U.S. Courts, has said grand jury confidentiality is a key component of the nation’s criminal justice system. More than 9,000 grand jury sessions were convened in federal courts last year, including 65 in the District of Kansas, he said.

In its brief filed with the Supreme Court, the Reporters Committee had argued that prosecutors shouldn’t be allowed to use grand jury proceedings to silence critics.

“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 brief said. “To do otherwise would allow a content-based regulation on speech to survive without withstanding the proper constitutional test, a notion that directly contravenes this Court’s well-established First Amendment jurisprudence regarding content-based regulations.”

Reynolds’ attorney, Robert Corn-Revere of Washington, D.C., expressed disappointment with the Supreme Court’s refusal to take up Reynolds’ appeal but also acknowledged that most appeal petitions are denied.

“It is true that it is very difficult to have any expectation that a petition be heard because the odds are so stacked against it, but I guess I thought the issue was so fundamental to what this country was supposed to be about that the justices would see fit to defend the primacy of political dissent,” Corn-Revere said. “They didn’t.”

The case is In Re Grand Jury Proceedings, 10-512.

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