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Mass purchase of newspapers violates First Amendment rights

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From the Winter 2003 issue of The News Media & The Law, page 17.

From the Winter 2003 issue of The News Media & The Law, page 17.

A sheriff and his deputies violated the civil rights of a newspaper publisher when they bought all copies of the newspaper’s 1998 Election Day edition, the U.S. Court of Appeals in Richmond (4th Cir.) ruled Jan. 16. The newspaper, St. Mary’s Today, contained a front-page article critical of a candidate who was supported by the sheriff.

The court said that the actions of St. Mary’s County, Md., Sheriff Richard Voorhaar and his subordinates were a “classic example” of government censorship.

“In suppressing criticism of their official conduct and fitness for office on the very day that voters were heading to the polls, defendants did more than compromise some attenuated or penumbral First Amendment right; they struck at its heart,” the court said.

The court’s decision overturned the dismissal of the case by a federal trial court judge who had held that the purchase of the newspapers could not be a violation of civil rights because the officers were acting at the time as private citizens, not government officials.

Several officers dressed in casual clothing went to roughly 40 stores the night before a local election in November 1998. They purchased more than 1,300 copies of St. Mary’s Today, essentially depleting the stock of the newspaper in the county.

Evidence showed that the officers conducted the mass purchase in retaliation for the newspaper’s negative coverage of Sheriff Voorhaar and other local candidates.

“We don’t believe in blasphemy being published, so we’re buying them all,” one deputy said while purchasing the newspapers.

St. Mary’s Today admitted to publishing, on a continual basis, “constant belittlement” and “scandalous things” about the sheriff’s office, according to the court.

While the facts of the case were largely undisputed, the parties differed over whether the officers were acting “under color of law” when they executed the mass purchase.

The distinction is critical in a civil rights case: A government official is subject to civil rights laws only if he infringes upon a citizen’s civil rights while he purports to be performing official duties. In its opinion, the appeals court said the officers clearly had acted under color of law when they bought out the newspapers.

“Defendants executed a systematic, carefully-organized plan to suppress the distribution of St. Mary’s Today,” the court said. “And they did so to retaliate against those who questioned their fitness for public office and who challenged many of them in the conduct of their official duties . . . The fact that these law enforcement officers acted after hours and after they had taken off their badges cannot immunize their efforts to shield themselves from adverse comments and to stifle public scrutiny of their performance.”

The officers carried firearms and were recognized by vendors as police deputies. Witnesses testified that the officers intimidated store workers into selling the entire stock of the newspaper.

“The incident in this case may have taken place in America, but it belongs to a society much different and more oppressive than our own,” the court said.

The officers should have brought a defamation action if they thought the newspaper’s reports were untrue, the court said.

The Reporters Committee for Freedom of the Press, along with the American Society of Newspaper Editors and the Association of Alternative Newsweeklies, submitted a friend-of-the-court brief to the appeals court in support of St. Mary’s Today.

Following the decision, the sheriff, his deputies and a candidate for public office involved in the mass purchase of the newspaper petitioned the entire court of appeals to rehear the case.

In their Jan. 28 brief, petitioners argued that the Fourth Circuit panel should not have addressed whether their conduct violated the First Amendment prior to or as a part of its determination that state action was present. (Rossignol vs. Voorhaar) — WT