America: The decline and fall of a constitutional republic continues

Warning: Reading this blog post could be a crime.

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.”

The brief was filed in support of Siobhan Reynolds, an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.

The Institute for Justice does not represent Ms. Reynolds, and it is not a party in the case. Its submission, made with a second libertarian group, Reason Foundation, was an amici curiae — or friends of the court — brief. It relied only on publicly available materials.

But it was sealed by the United States Court of Appeals for the 10th Circuit, in Denver, citing grand jury secrecy rules. The court then denied the groups’ motion to unseal their own brief. That ruling itself is sealed, too, but I have seen parts of it.

Among the reasons for keeping the brief secret, the court said, was that the groups’ goal “is clearly to discuss in public amici’s agenda.” Well, yes.

The brief paints an unflattering picture of the United States attorney’s office in Kansas, which may have overreacted to Ms. Reynolds’s adamant public defense of two medical professionals, Stephen J. Schneider and his wife, Linda K. Schneider, who were indicted in 2007 for illegally distributing prescription painkillers to patients who overdosed on them.

In 2008, Tanya J. Treadway, a federal prosecutor, asked the judge in the Schneiders’ case to prohibit Ms. Reynolds, who is not a lawyer and had no formal role in the case, from making “extrajudicial statements.” In the vernacular, Ms. Treadway asked for a gag order.

Judge Monti L. Belot of Federal District Court in Wichita denied that request, saying Ms. Treadway was seeking an unconstitutional prior restraint on speech.

Then Ms. Treadway tried another tack. She issued a sprawling grand jury subpoena to Ms. Reynolds.

It had almost 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 Schneiders and a documentary film called, perhaps presciently, “The Chilling Effect.”

“It was a nuclear bomb of a subpoena,” Ms. Reynolds said in an interview from Santa Fe, N.M., where she lives. “I was viscerally terrorized. I was genuinely physically frightened.”

Mr. Sherman, of the Institute for Justice, said the subpoena to Ms. Reynolds smelled of prosecutorial payback. “As far as we can tell,” he said, “she was targeted because of her outspoken criticism.”

Ms. Treadway did not respond to a request for comment and a spokesman for her office declined to comment.

Read the rest here.